ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N.
(2S) 1
CAMPAIGN, ELECTION PROPAGANDA, ETC
CHAVEZ VS COMELEC 2004
Section 32 of its Resolution No. 6520, dated January 6,
2004.
 All propaganda materials such as
o (PSSPM) posters, streamers, stickers or
paintings on walls and OM
 showing the (PIN) picture, image,
or name of a person
o all advertisements on (PRT) print, in radio
or on television
 showing the image or
 mentioning the name of a person
o who subsequent to the placement or display
thereof
o becomes a candidate for PO
o shall be immediately removed by said
candidate and radio station, print media or
TV station
o within 3 days after the effectivity of these
implementing rules;
o OW, he and said radio station, print media
or TV station shall be presumed to have
conducted PC in violation of Section 80 of
the OEC
Sec. 79. Definitions: CANDIDATE
 any person aspiring for/seeking an elective public
office
 who has filed a COC
 by himself/through an accredited political party,
aggroupment or coalition of parties
ELECTION CAMPAIGN" OR "PARTISAN
POLITICAL ACTIVITY"
 act designed to promote the election or defeat of a
particular candidate/s to a public office which shall
include:
 (1) Forming [OACCG] organizations, associations,
clubs, committees or other groups of persons for the
purpose of soliciting votes and/or undertaking any
campaign for or against a candidate;
 (2) Holding [CCMRPA] political caucuses,
conferences, meetings, rallies, parades, or other
similar assemblies for same 1
 (3) Making [SACI] speeches, announcements or
commentaries, or holding interviews for or against
the election of any candidate for public office;
 (4) Publishing or distributing [CLM] campaign
literature or materials designed to support or oppose
the election of any candidate; or
 (5) Directly or indirectly soliciting [VSP] votes,
pledges or support for or against a candidate.
^^ if performed for the purpose of enhancing the chances of
aspirants for nomination for candidacy to a public office by a
political party, aggroupment, or coalition of parties shall not
be considered as EC/PPA
EOD Public expressions/opinions/discussions
 of probable issues in a forthcoming election
 or on attributes/criticisms against probable candidates
proposed to be nominated in a forthcoming political
party convention shall not be construed as part of any
EC/PPA
Sec. 80. It shall be unlawful for any person, whether or not a
voter or candidate, or for any party, or association of
persons, to engage in an EC/PPA EXCEPT DURING THE
CAMPAIGN PERIOD: Provided, That political parties may
hold political conventions or meetings to nominate their
official candidates
 within 30 days before the commencement of the
campaign period
 and 45 days for Presidential and Vice-Presidential
election.
NATIONAL PRESS CLUB VS COMELEC
SECTION 11 RA6646
Sec. 11. Prohibited Forms of Election Propaganda. - In
addition to the forms of election propaganda prohibited under
Section 85 of BP881, it shall be unlawful:
 to draw, paint, inscribe, write, post, display or
publicly exhibit any election propaganda in any
place, whether private or public,
o except in the common poster areas and/or
billboards provided in the immediately
preceding section,
o at the candidate's own residence,
o or at the campaign headquarters of the
candidate or political party:
 Provided, That such posters or election propaganda
shall in no case exceed 2by3 feet in area:
 Provided, further, That at the site of and on the
occasion of a public meeting or rally,
o streamers, not more than 2
o and not exceeding 3by8 feet each may be
displayed
o 5 days before the date of the meeting or rally
o and shall be removed within 24hours after
said meeting or rally
 for any newspaper, radio broadcasting or television
station, or other mass media, or any person making
use of the mass media to sell or to give free of charge
print space or air time for campaign or other political
purposes except to the Commission as provided
under Sections 90 and 92 of BP 881.
o Any [MCCAP] mass media columnist,
commentator, announcer or personality who
is a candidate for any elective public office
shall take a LOA from his work as such
during the campaign period.
OBJECTIVES:
 prohibit premature campaigning
 level the playing field for candidates of public office
 equalize the situation between popular or rich
candidates, on one hand, and lesser-known or poorer
candidates, on the other,
 preventing the former from enjoying undue
advantage in exposure and publicity on account of
their resources and popularity.
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
 preventing the former from enjoying the undue
advantage offered by huge campaign war chests.
 of special importance and urgency in a country
which, like ours, is characterized by
o extreme disparity in income distribution
between the economic elite and the rest of
society, and by
o prevalence of poverty, with so many of our
population falling below the poverty line
NOTES:
 when he filed his COC for Senator, the billboards
featuring his name and image assumed partisan
political character because the same indirectly
promoted his candidacy
 an individual intending to run for public office within
the next few months, could pay private corporations
to use him as their image model with the intention of
familiarizing the public with his name and image
even before the start of the campaign period.
 This, without a doubt, would be a circumvention of
the rule against PC
 1-NO gross violation of the non-impairment clause
o Equal opportunity to proffer oneself for
public office, without regard to the level of
financial resources one may have at his
disposal, is indeed of vital interest to the
public
o Contracts affecting public interest contain an
implied reservation of the police power as a
postulate of the existing legal order.
 This power can be activated at
anytime to change the provisions
of the contract, or even abrogate it
entirely, for the promotion or
protection of the general welfare.
 2-NOT EX POST FACTO LAW
o the offense defined is not the putting up of
propaganda materials AND entering of
contracts for such propaganda materials by
an individual who subsequently becomes a
candidate for public office
 The offense is the non-removal of the described
propaganda materials 3days after the effectivity of
COMELEC Resolution No. 6520.
 3-NO violation of the Fair Elections Act.
o It only regulates their use to prevent PC
o COMELEC is merely doing its duty under
the law. Under Sections 3 and 13 of the Fair
Elections Act, all election propaganda are
subject to the supervision and regulation by
the COMELEC:
 SECTION 3. Lawful Election Propaganda. --
Election propaganda, whether on television, cable
television radio, newspapers or any other medium is
hereby allowed
o for all registered political parties, national,
regional, sectoral parties or organizations
participating under the party list elections
and
2
o for all bona fide candidates seeking national
and local elective positions
o subject to the limitation on:
 authorized expenses of candidates
and
 political parties observance of truth
in advertising and
 to the supervision and regulation by
COMELEC
 Lawful election propaganda shall include:
 1-Pamphlets, leaflets, cards, decals, stickers or other
written or printed materials the size of which does not
exceed 8.5 in width and 14 inches in length;
 2-Handwritten or printed letters urging voters to vote
for or against any particular political party or
candidate for public office;
 3-Cloth, paper or cardboard posters whether framed
or posted, with an area not exceeding 2 by 3 feet,
except that, SEE SEC11 RA6646
 4-Paid advertisements in print or broadcast media:
Provided, That the advertisements shall follow the
requirements set forth in Section 4 of this Act; and
 5-All other forms of election propaganda not
prohibited by the OEC or this Act.
 SECTION 13. The COMELEC shall promulgate and
furnish all political parties and candidates and the
mass media entities the rules and regulations for the
implementation of this Act, consistent with the
criteria established in :
o Article 9-C Section 4 of the Constitution
o and Section 86 of the OEC (BP 881).
 RR promulgated by the COMELEC shall take effect
on the 7th day after their publication in at least 2
daily newspapers of GC. Prior to effectivity of said
RR, no political advertisement or propaganda for or
against any candidate or political party shall be
published or broadcast through mass media.
 Violation of this Act+IRR= election offense
punishable under the 1st and 2nd par of Sec264 OEC
 4-NO OVERBREADTH
 A statute or regulation = void for overbreadth when
it offends the constitutional principle that:
o a governmental purpose to control or
prevent activities constitutionally subject to
State regulations MAY NOT BE
ACHIEVED by means that:
 sweep unnecessarily broadly
 and thereby invade the area of
protected freedoms
 The provision in question is limited in its operation
both as to time and scope.
o after he has filed a certificate of candidacy
and before the start of the campaign period
o materials and advertisements must also
show his name and image.
WHEREFORE, the petition is DISMISSED and Section 32 of
COMELEC Resolution No. 6520 is declared valid and
constitutional. The prayer for a TRO and/or a WPI is hereby
DENIED. No costs.
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
PENERA VS COMELEC (MOTORCADE)
1. That on March 29, 2007 at 3:00 P.M. at Sta.
Monica, Surigao del Norte, Mayoralty Candidates
Rosalinda CA. Penera and(4) kagawads filed their
COC
2. That their [sic] was a motorcade consisting of 2 jeep
and 10 motorcycles after actual registration with the
COMELEC with jeeps decorated with balloons and
a streamer of Margarito Longos, Board Member
Candidate;
3. That the motorcade proceeded to three 3/11
barangays while supporters were throwing sweet
candies to the crowd;
4. That there was merriment and marching music
without mention of any name of the candidates more
particularly lead-candidate Rosalinda CA. Penera
5. That we were in the motorcade on that afternoon
only riding in one of the jeepneys.
SECTION. 68. Disqualifications. - Any candidate who,
 in an action or protest in which he is a party is
declared by final decision of a competent court guilty
 or found by the Commission of having xxx (e)
violated any of Sections 80, 83, 85, 86 and 261,
paragraphs d, e, k, v, and cc, subparagraph 6,
 shall be disqualified from continuing as a candidate,
 or if he has been elected, from holding the office.
 Any person who is a permanent resident of or an
immigrant to a foreign country shall not be qualified
to run for any elective office under this Code,
o unless said person has waived his status as
permanent resident or immigrant of a
foreign country
o in accordance with the residence
requirement provided for in the election
laws.
NOTES:
 The conduct of a motorcade is a form of election
campaign or partisan political activity, falling
squarely within the ambit of Section 79(b)(2) of OEC
 A motorcade is a procession or parade of automobiles
or other motor vehicles.
 The obvious purpose of the conduct of motorcades is
to introduce the candidates and the positions, to
which they seek to be elected, to the voting public; or
to make them more visible so as to facilitate the
recognition and recollection of their names in the
minds of the voters come election time.
The dissenting opinion, however, raises the legal issue that
Section 15 of RA 8436, as amended by RA 9369, provides a
new definition of the term candidate, as a result of which, PC
may no longer be committed as held in Lanot vs COMELEC
[Thus, prior to the start of the campaign period, there can be
no EC/PPA designed to promote the election or defeat of a
particular candidate to public office because there is no
candidate to speak of]
 Definition of candidate Sec 79 OEC
3
 RA 8436 enacted on 22 December 1997, authorized
the COMELEC to use an AES for the process of
voting, counting of votes, and canvassing/
consolidating the results of the national and local
elections.
 The statute also mandated the COMELEC
o to acquire automated counting machines,
computer equipment, devices and materials;
o and to adopt new electoral forms and
printing materials
On 10 February 2007, Republic Act No. 9369 took effect.
Section 13 amended Section 11 and became Section 15
SECTION.15. The Commission shall prescribe:
 the format of the electronic display
 and/or the size and form of the official ballot, which
shall contain:
o the titles of the position to be filled and/or
o the proposition to be voted upon in an
initiative, referendum or plebiscite.
 Where practicable, electronic displays must be
constructed to present the names of all candidates for
the same position in the same page or screen,
 otherwise, the electronic displays must be constructed
o to present the entire ballot to the voter, in a
series of sequential pages, and
o to ensure that the voter sees all of the ballot
options on all pages before completing his
or her vote and
o to allow the voter to review and change all
ballot choices prior to completing and
casting his or her ballot.
 Under each position to be filled, the names of
candidates shall be:
o arranged alphabetically by surname and
o uniformly indicated using the same type
size.
 A fixed space where the chairman of the board of
election inspector shall affix her/her signature to
authenticate the official ballot shall be provided.
 The Commission shall set the deadline for the filing
of COC/petition of registration/manifestation to
participate in the election.
 Any person who files his COC within this period
shall only be considered as a candidate at the start of
the campaign period for which he filed his
certificate of candidacy:
 Provided, That, unlawful acts or omissions applicable
to a candidate shall effect only upon the start of the
aforesaid campaign period:
 Provided, finally, That any person holding a public
appointive office or position, including active
members of the AFP, and officers, and employees in
GOCC, shall be considered ipso factor resigned from
his/her office and must vacate the same at the start of
the day of the filing of his/her COC
To our mind, there is no absolute and irreconcilable
incompatibility between Section 15 of RA 8436, as amended,
and Section 80 of the OEC.
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
 Under Sec 80 of OEC, PC may be committed even by
a person who is not a candidate. Therefore Lanot
ruling that what Sec 80 prohibits is EC/PPA by a
candidate outside the campaign period is clearly
erroneous.
 Second Sec 79 defines EC/PPA. True, that pursuant
to Section 15 of RA 8436, as amended, even after the
filing of the COC but before the start of the campaign
period, a person is not yet officially considered a
candidate.
o Nevertheless, a person, upon the filing of
his/her COC, already explicitly declares
his/her intention to run as a candidate in the
coming elections. The commission of
Section 79 can, thus, be logically and
reasonably construed as for the purpose of
promoting his/her intended candidacy.
o When the campaign period starts and said
person proceeds with his/her candidacy,
HIS/HER INTENT TURNING INTO
ACTUALITY, we can already consider
his/her acts, after the filing of his/her COC
and prior to the campaign period, as the
promotion of his/her election as a candidate,
hence, constituting PC
o Also, conversely, if said person, for any
reason, withdraws his/her COC before the
campaign period, then there is no point to
view his/her acts prior to said period as acts
for the promotion of his/her election as a
candidate. NO PC since NO candidate
 Third, Section 15 does not mean that the acts
constituting PC can only be committed, for which the
offender may be disqualified, during the campaign
period. Nowhere in the said proviso was it stated that
campaigning before the start of the campaign period
is lawful, such that the offender may freely carry out
the same with impunity.
o Only after said person officially becomes a
candidate, at the beginning of the campaign
period, can said acts be given effect as PC
and his/her disqualification be sought.
o Only at the start of the campaign period,
when the person officially becomes a
candidate, that the undue and iniquitous
advantages of his/her prior acts, constituting
PC, shall accrue to his/her benefit [unfair
headstart in promoting his/her candidacy]
 We cannot stress strongly enough that PC is a
pernicious act that is continuously threatening to
undermine the conduct of fair and credible elections
in our country, no matter how great or small the acts
constituting the same are..
 The choice as to who among the candidates will the
voting public bestow the privilege of holding public
office should not be swayed by the shrewd
conduct, verging on bad faith, of some individuals
who are able to spend resources to promote their
candidacies in advance of the period slated for
campaign activities.
4
The Dissenting Opinion further expresses the fear that
pursuant to our theory, all the politicians with infomercials
prior to the filing of their COCs would be subject to
disqualification, and this would involve practically all the
prospective presidential candidates who are now leading in the
surveys. [This fear is utterly unfounded.]
 It is the filing by the person of his/her COC through
which he/she explicitly declares his/her intention to
run as a candidate in the coming elections
 It is such declaration which would color the
subsequent acts of said person to be EC/PPA under
Sec79.
 The plain solution to this rather misplaced
apprehension is for the politicians themselves to
adhere to the letter and intent of the law and keep
within the bounds of fair play in the pursuit of their
candidacies.
o This would mean that after filing their
COCs, the prudent and proper course for
them to take is to wait for the designated
start of the campaign period before they
commence their election campaign or
partisan political activities.
o Indeed, such is the only way for them to
avoid disqualification on the ground of
premature campaigning
o It is not for us to carve out exceptions to the
law, much more to decree away the repeal
thereof, in order to accommodate any class
of individuals, where no such exception or
repeal is warranted.
NOVEMBER 2009 RESOLUTION
 The Decision considers a person who files a
certificate of candidacy already a "candidate" even
before the start of the campaign period. [contrary to
the clear intent and letter of the law]
 Section 11 of RA 8436 (moved the deadline for the
filing of COC to 120 days before election day. The
only purpose for the early filing of COC is to give
ample time for the printing of official ballots. [Based
on Bicameral Conference Committee]
 The Decision reverses Lanot v. COMELEC, which
held that a person who files a certificate of candidacy
is not a candidate until the start of the campaign
period. In Lanot, this Court explained: essential
elements for violation of Section 80 are: (1) a person
engages in an EC/PPA; (2) the act is designed to
promote the election or defeat of a particular
candidate or candidates; (3) the act is done outside
the campaign period.
 Lanot was decided on the ground that one who files a
COC is not a candidate until the start of the campaign
period. This ground was based on the deliberations of
the legislators. There was no express provision in the
original RA 8436 stating that one who files a COC is
not a candidate until the start of the campaign
period.
o When Congress amended RA 8436,
Congress decided to expressly incorporate
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S) 5
the Lanot doctrine into law, realizing that
Lanot merely relied on the deliberations of
Congress in holding that — The clear
intention of Congress was to preserve the
"election periods as x x x fixed by existing
law" prior to RA 8436 and that one who
files to meet the early deadline "will still not
be considered as a candidate."
 Congress elevated the Lanot doctrine into a statute by
specifically inserting it as the 2nd sentence of the 3rd
paragraph of the amended Section 15 of RA 8436,
which cannot be annulled by this Court except on the
sole ground of its unconstitutionality.
o The Decision cannot reverse Lanot without
repealing this 2nd sentence, because to
reverse Lanot would mean repealing this 2nd
sentence.
 The assailed Decision, however, in reversing Lanot
does not claim that this second sentence or any
portion of Section 15 is unconstitutional. In fact, the
Decision considers the entire Section 15 good law.
Thus, THE DECISION IS SELF-
CONTRADICTORY — reversing Lanot but
maintaining the constitutionality of the second
sentence, which embodies the Lanot doctrine
 The Decision rationalizes that a candidate who
commits premature campaigning can be disqualified
or prosecuted only after the start of the campaign
period. This is not what the law says.
 The law does not state, as the assailed Decision
asserts, that partisan political acts done by a
candidate before the campaign period are unlawful,
but may be prosecuted only upon the start of the
campaign period.
 Neither does the law state that partisan political acts
done by a candidate before the campaign period are
temporarily lawful, but becomes unlawful upon the
start of the campaign period.
 Besides, such a law as envisioned in the Decision,
which defines a criminal act and curtails freedom of
expression and speech, would be void for vagueness.

WHEREFORE, we GRANT petitioner Rosalinda A. Penera’s

MR. Shall continue as Mayor of Sta. Monica, Surigao del
Norte.
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
SWS vs COMELEC
FACTS:
 Petitioners brought this action for prohibition to
enjoin the COMELEC from enforcing 5.4 of R.A.
No. 9006 (Fair Election Act), which provides:
Surveys affecting national candidates shall not be
published fifteen (15) days before an election and
surveys affecting local candidates shall not be
published seven (7) days before an election.
 Election surveys refer to the measurement of
opinions and perceptions of the voters as regards a
candidates popularity, qualifications, platforms or a
matter of public discussion in relation to the election,
including voters preference for candidates or publicly
discussed issues during the campaign period
 Petitioners argue that the restriction on the
publication of election survey results constitutes a
prior restraint on the exercise of freedom of speech
without any clear and present danger to justify such
restraint.
 published the results of surveys prior to the 1992,
1995, and 1998 elections up to as close as two days
before the election day without causing confusion
among the voters
 No empirical nor historical evidence to support the
conclusion that there is an immediate and inevitable
danger to the voting process
 No similar restriction is imposed on politicians from
explaining their opinion or on newspapers or
broadcast media from writing and publishing articles
concerning political issues up to the day of the
election.
5.4 of R.A. No. 9006 constitutes an unconstitutional
abridgment of freedom of speech, expression, and the
press
 Because of the preferred status of the constitutional
rights, such a measure is vitiated by a weighty
presumption of invalidity.
o Government thus carries a heavy burden of
showing justification for the enforcement of
such restraint.
o A reversal of the normal presumption of
validity that inheres in every legislation.
 The grant of power to the COMELEC under Art. IX-
C, 4 is limited to ensuring equal opportunity, time,
space, and the right to reply as well as uniform and
reasonable rates of charges for the use of such media
facilities for public information campaigns and
forums among candidates
o No presumption of invalidity arises in
respect of exercises of supervisory or
regulatory authority
ABOUT THE DISSENTING OPINION
 MR. JUSTICE KAPUNAN rejects as inappropriate
the test of clear and present danger for determining
the validity of 5.4.
o Osmena v. COMELEC: this test was
originally formulated for the criminal law
6
and only later appropriated for free speech
cases.
o while it may be useful for determining the
validity of laws dealing with inciting to
sedition or incendiary speech, may not be
adequate
o such a test is concerned with questions of
the gravity and imminence of the danger as
basis for curtailing free speech
 He instead purports to engage in a form of balancing
by weighing and balancing the circumstances to
determine whether public interest [in free, orderly,
honest, peaceful and credible elections] is served by
the regulation of the free enjoyment of the rights
(page 7).
 After canvassing the reasons for the prohibition:
o to prevent last-minute pressure on voters,
o the creation of bandwagon effect to favor
candidates,
o misinformation,
o the junking of weak and losing candidates
by their parties,
o and the form of election cheating called
dagdag-bawas
o invoking the States power to supervise
media of information during the election
period
 the dissent simply concludes: it is a mere restriction,
not an absolute prohibition, on the publication of
election surveys.
 The dissent does not show why, on balance, these
considerations should outweigh the value of freedom
of expression.
 the dissent has engaged only in a balancing at the
margin. This form of ad hoc balancing predictably
results in sustaining the challenged legislation and
leaves freedom of speech, expression, and the press
with little protection.
o For anyone who can bring a plausible
justification forward can easily show a
rational connection between the statute and a
legitimate governmental purpose.
o In contrast, the balancing of interest
undertaken by then Justice Castro in
Gonzales v. COMELEC results in his
conclusion that 50-B of R.A. No. 4880,
which limited the period of EC/PPA, was an
unconstitutional abridgment of freedom of
expression.
 Nor can the ban on election surveys be justified on
the ground that there are other countries according to
SolGen which similarly impose restrictions on the
publication of election surveys.
o US, UK, Austria, Belgium, Denmark,
Estonia, Finland, Iceland, Ireland, Latvia,
Malta, Macedonia, the Netherlands,
Norway, Sweden, and Ukraine, some of
which are no older nor more mature than the
Philippines in political development, do not
restrict the publication of election survey
results.
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
What test should then be employed to determine the
constitutional validity of 5.4? The United States Supreme
Court, through CHIEF JUSTICE WARREN, HELD IN
UNITED STATES V. OBRIEN:
 [A] government regulation is sufficiently justified
o [1] if it is within the constitutional power of
the Government;
o [2] if it furthers an important or
substantial governmental interest;
o [3] if the governmental interest is unrelated
to the suppression of free expression; and
o [4] if the incidental restriction on alleged
First Amendment freedoms [of speech,
expression and press] is no greater than is
essential to the furtherance of that interest.
 This is so far the most influential test for
distinguishing content-based from content-neutral
regulations and is said to have become canonical in
the review of such laws.
 OBrien test has been applied by this Court in at least
two cases
 First. Sec. 5.4 fails to meet criterion [3] of the OBrien
test because the causal connection of expression to
the asserted governmental interest makes such
interest not unrelated to the suppression of free
expression.
o 5.4 actually suppresses a whole class of
expression, while allowing the expression of
opinion concerning the same subject matter
by newspaper columnists, radio and TV
commentators, armchair theorists, and other
opinion makers
o 5.4 shows a bias for a particular subject
matter by preferring personal opinion to
statistical results.
o The inhibition of speech should be upheld
only if the expression falls within one of the
few unprotected categories dealt with in
Chaplinsky v. New Hampshire
 include the lewd and obscene,
 the profane,
 the libelous, and
 the insulting or fighting words
those which by their very utterance
inflict injury or tend to incite an
immediate breach of the peace.
 the prohibition imposed by 5.4 cannot be justified on
the ground that it is only for a limited period and is
only incidental. The prohibition may be for a limited
time, but the curtailment of the right of expression is
direct, absolute, and substantial. It constitutes a total
suppression of a category of speech and is not made
less so because it is only for a period of fifteen (15)
days immediately before a national election and
seven (7) days immediately before a local election.
o This sufficiently distinguishes 5.4 from R.A.
No. 6646, 11(b), which this Court found to
be valid in National Press Club v.
COMELEC and Osmea v. COMELEC.
7
 For the ban imposed by R.A. No.
6646, 11(b) is not only authorized
by a specific constitutional
provision,but it also provided an
alternative so that there was
actually no ban but only a
substitution of media
advertisements by the
COMELEC space and
COMELEC hour.
 Second. Even if the governmental interest sought to
be promoted is unrelated to the suppression of speech
and the resulting restriction of free expression is only
incidental, 5.4 nonetheless fails to meet criterion [4]
of the OBrien test
o aim can be more narrowly pursued by
punishing unlawful acts, rather than speech
because of apprehension that such speech
creates the danger of such evils.
o Thus, under the Administrative Code of
1987, the COMELEC is given the power: To
stop any illegal activity, or confiscate, tear
down, and stop any unlawful, libelous,
misleading or false election propaganda,
after due notice and hearing.
o This is surely a less restrictive means than
the prohibition contained in 5.4.
o it can confiscate bogus survey results
calculated to mislead voters. Candidates can
have their own surveys conducted.
o As for the purpose of the law to prevent
bandwagon effects, it is doubtful whether
the Government can deal with this natural-
enough tendency of some voters.
o [mere] legislative preferences or beliefs
respecting matters of public convenience
may well support regulation directed at other
personal activities, but be insufficient to
justify such as diminishes the exercise of
rights so vital to the maintenance of
democratic institutions.
To summarize then, we hold that 5.4 is invalid because (1) it
imposes a prior restraint on the freedom of expression, (2) it is
a direct and total suppression of a category of expression even
though such suppression is only for a limited period, and (3)
the governmental interest sought to be promoted can be
achieved by means other than the suppression of freedom of
expression.
WHEREFORE, the petition for prohibition is GRANTED and
5.4 of R.A. No. 9006 and 24(h) of COMELEC Resolution
3636, dated March 1, 2001, are declared unconstitutional.
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
GMA Network vs COMELEC
FACTS:
 The five (5) petitions before the Court put in issue the
alleged unconstitutionality of Section 9 (a) of
COMELEC Resolution No. 9615 (Resolution)
dated January 15, 2013 limiting the broadcast and
radio advertisements of candidates and political
parties for national election positions to an aggregate
total of one hundred 120 minutes and 180 minutes,
respectively.
 They contend that such restrictive regulation on
allowable broadcast time violates:
o freedom of the press
o impairs the people’s right to suffrage
o right to information relative to the exercise
of their right to choose who to elect during
the forthcoming elections
 The heart of the controversy: proper interpretation of
the limitation on the number of minutes that
candidates may use for TV and radio advertisements,
as provided in Section 6 of Republic Act No. 9006
(Fair Election Act)
Sec. 6. Equal Access to Media Time and Space. - All
registered parties and bona fide candidates shall have
equal access to media time and space. The following
guidelines may be amplified on by the COMELEC:
 6.2 (a) Each bona fide candidate/registered political
party for a nationally elective office shall be entitled
to not more than 120 minutes of television
advertisement and 180 minutes of radio
advertisement whether by purchase or donation.
 b. Each bona fide candidate/registered political party
for a locally elective office shall be entitled to not
more than 60 minutes of television advertisement and
90 minutes of radio advertisement whether by
purchase or donation.
 For this purpose, the COMELEC shall require any
broadcast station or entity to submit to the
COMELEC a copy of its broadcast logs +
certificates of performance for the review and
verification of the frequency, date, time and duration
of advertisements broadcast for any candidate or
political party.
 BEFORE (May 14, 2007 and May 10, 2010
elections), COMELEC issued Resolutions
implementing and interpreting Section 6 of R.A. No.
9006, regarding airtime limitations, to mean that a
candidate is entitled to the aforestated number of
minutes “per station.”
 For the May 2013 elections, COMELEC promulgated
Resolution No. 9615, changing the interpretation
from a “per station” basis, to a “total aggregate”
basis.
 CAYETANO ALLEGES: The change in the
implementation of Section 6 of R.A. 9006:
o w/o consultation with the candidates for the
2013 elections, affected parties such as
media organizations + general public.
o w/o explaining the basis therefor + w/o
showing any data in support of such change.
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o w/o particularizing the empirical data upon
which such a sweeping statement was based.
 This was evident in the public
hearing held on 1/31/2013 where
petitioner GMA, thru counsel,
explained that no empirical data on
the excesses or abuses of broadcast
media were brought to the attention
of the public by Comelec, or even
stated in the Comelec Reso No.
9615
COURT SAID:
1. Comelec Chairman: “if the Constitution allows us to
regulate and then it gives us the prerogative to
amplify then the prerogative to amplify you should
leave this to the discretion of the Commission.” The
Court could not agree with what appears as a
NONCHALANT EXERCISE OF DISCRETION.
o There is no question that the COMELEC is
the office constitutionally and statutorily
authorized to enforce election laws but it
cannot exercise its powers without
limitations – or reasonable basis.
o It could not simply adopt measures or
regulations just because it feels that it is the
right thing to do, in so far as it might be
concerned. It does have discretion, but such
discretion is something that must be
exercised within the bounds and intent of
the law.
o The COMELEC is not free to simply change
the rules especially if it has consistently
interpreted a legal provision in a particular
manner in the past. If ever it has to change
the rules, the same must be properly
explained with sufficient basis.
o If the “per station” basis was deemed
enough to comply with that objective in
the past, why should it now be suddenly
inadequate? And, the short answer to that
from the respondent, in a manner which
smacks of overbearing exercise of
discretion, is that it is within the discretion
of the COMELEC. “The right to amplify is
with the COMELEC. Nobody can encroach
in our right to amplify.
o wrong with that manner of explaining
changes in administrative rules:
 For one, it does not really provide a
good basis for change.
 For another, those affected by such
rules must be given a better
explanation why the previous rules
are no longer good enough.
o Court said in one case: While stability in the
law, particularly in the business field, is
desirable, there is no demand that the NTC
slavishly follow precedent. However, we
think it essential, for the sake of clarity and
intellectual honesty, that if an administrative
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
agency decides inconsistently with previous
action, that it explain thoroughly why a
different result is warranted, or if need be,
why the previous standards should no longer
apply or should be overturned. Such
explanation is warranted in order to
sufficiently establish a decision as having
rational basis. Any inconsistent decision
lacking thorough, ratiocination in support
may be struck down as being arbitrary. And
any decision with absolutely nothing to
support it is a nullity.
2. COMELEC is duty bound to come up with
reasonable basis for changing the interpretation and
implementation of the airtime limits
o The law, on its face, does not justify a
conclusion that the maximum allowable
airtime should be based on the totality of
possible broadcast in all TV or radio
stations.
o Senator Cayetano has called our attention to
the legislative intent relative to the airtime
allowed – that it should be on a “per station”
basis.
o This is further buttressed by the fact that the
Fair Election Act actually repealed the
previous provision, Section 11(b) of
Republic Act No. 6646, which prohibited
direct political advertisements – the so-
called “political ad ban.”
 If under the previous law, no
candidate was allowed to directly
buy or procure on his own his
broadcast or print campaign
advertisements, and that he must
get it through the COMELEC
Time/COMELEC Space, RA9006
relieved him or her from that
restriction and allowed him or her
to broadcast time or print space
subject to the limitations set out
in the law.
 Congress, in enacting R.A. No.
9006, felt that the previous law was
not an effective and efficient way
of giving voice to the people.
Noting the debilitating effects of the
previous law on the right of
suffrage and Philippine democracy,
Congress decided to repeal such
rule by enacting the Fair Election
Act.
o Clearly, the respondent in this instance went
beyond its legal mandate when it provided
for rules beyond what was contemplated by
the law it is supposed to implement.
o As we held in Lokin, Jr. COMELEC:
The IRRs the COMELEC issued for that
purpose should always be in accord with the
law to be implemented, and should not
override, supplant, or modify the law. It is
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basic that the IRRs should remain consistent
with the law they intend to carry out. The
law itself cannot be expanded by such IRRs,
because an administrative agency cannot
amend an act of Congress.
3. Section 9 (a) of COMELEC Resolution No. 9615 on
airtime limits also goes against the constitutional
guaranty of freedom of expression, of speech and of
the press
o Political speech is one of the most important
expressions protected by the Fundamental
Law. “[F]reedom of speech, of expression,
and of the press are at the core of civil
liberties and have to be protected at all costs
for the sake of democracy.” Accordingly,
the same must remain unfettered unless
otherwise justified by a compelling state
interest.
o GMA came up with its analysis of the
practical effects of such a regulation:
o a national candidate will only have 120
minutes to utilize for his political
advertisements in television during the
whole campaign period of 88 days, or will
only have 81.81 seconds per day TV
exposure allotment.
o If he chooses to place his political
advertisements in the 3 major TV networks
in equal allocation, he will only have 27.27
seconds of airtime per network per day.
This barely translates to 1 advertisement
spot on a 30-second spot basis in television.
o With a 20-hour programming per day and
considering the limits of a station’s
coverage, it will be difficult for 1
advertising spot to make a sensible and
feasible communication to the public, or in
political propaganda, to “make known [a
candidate’s] qualifications and stand on
public issues”.
o Based on the data from the 2012 Nielsen TV
audience measurement in Mega Manila,
the commercial advertisements in television
are viewed by only 39.2% of the average
total day household audience if such
advertisements are placed with petitioner
GMA, the leading television network
nationwide and in Mega Manila. In effect,
the three 30-second political advertisements
of a candidate in petitioner GMA will only
be communicated to barely 40% of the
viewing audience, not even the voting
population, but only in Mega Manila,
which is defined by AGB Nielsen
Philippines to cover Metro Manila and
certain urban areas in the provinces of
Bulacan, Cavite, Laguna, Rizal, Batangas
and Pampanga.
o Consequently, a national candidate will be
forced to use all of his airtime for political
advertisements in television only in urban
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
areas such as Mega Manila as a political
campaign tool to achieve maximum
exposure.
o The Court agrees. The assailed rule is
UNREASONABLE AND ARBITRARY as
it unduly restricts and constrains the ability
of candidates and political parties to reach
out and communicate with the people.
o The adverted reason for imposing the
“aggregate-based” airtime limits – leveling
the playing field – does not constitute a
compelling state interest which would
justify such a substantial restriction on the
freedom of candidates and political parties
to communicate their ideas, philosophies,
platforms and programs of government.
And, this is specially so in the absence of a
clear-cut basis for the imposition of such a
prohibitive measure. What the COMELEC
has done is analogous to letting a bird fly
after one has clipped its wings.
o Philippines is not only composed of so many
islands. There are also a lot of languages and
dialects spoken among the citizens across
the country. To add all of these airtimes in
different dialects would greatly hamper the
ability of such candidate to express himself
– a form of suppression of his political
speech.
o Respondent itself states that “TV is arguably
the most cost-effective medium of
dissemination. Even a slight increase in
television exposure can significantly boost a
candidate's popularity, name recall and
electability.” If that be so, then drastically
curtailing the ability of a candidate to
effectively reach out to the electorate would
unjustifiably curtail his freedom to speak as
a means of connecting with the people.
o Justice Black wrote in his concurring
opinion in the landmark Pentagon Papers
case: “The press was to serve the governed,
not the governors. The Government's power
to censor the press was abolished so that the
press would remain forever free to censure
the Government. The press was protected so
that it could bare the secrets of government
and inform the people. Only a free and
unrestrained press can effectively expose
deception in government.” In the ultimate
analysis, when the press is silenced, or
otherwise muffled in its undertaking of
acting as a sounding board, the people
ultimately would be the victims.
4. Section 9 (a) of Resolution 9615 is violative of the
people’s right to suffrage
o Fundamental to the idea of a democratic and
republican state is the right of the people to
determine their own destiny through the
choice of leaders they may have in
government. Thus, the primordial
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importance of suffrage and the concomitant
right of the people to be adequately
informed for the intelligent exercise of such
birthright.
o As long as popular government is an end to
be achieved and safeguarded, suffrage,
whatever may be the modality and form
devised, must continue to be the means by
which the great reservoir of power must be
emptied into the receptacular agencies
wrought by the people through their
Constitution in the interest of good
government and the common weal.
Republicanism, in so far as it implies the
adoption of a representative type of
government, necessarily points to the
enfranchised citizen as a particle of popular
sovereignty and as the ultimate source of the
established authority. He has a voice in his
Government and whenever possible it is the
solemn duty of the judiciary, when called
upon to act in justifiable cases, to give it
efficacy and not to stifle or frustrate it. This,
fundamentally, is the reason for the rule that
ballots should be read and appreciated, if not
with utmost, with reasonable, liberality.
o “[c]ompetition in ideas and governmental
policies is at the core of our electoral
process and of the First Amendment
freedoms.” Candidates and political parties
need adequate breathing space – including
the means to disseminate their ideas.
5. Resolution No. 9615 needs prior hearing before
adoption
o While it is true that the COMELEC is an
independent office and not a mere
administrative agency under the Executive
Department, rules which apply to the latter
must also be deemed to similarly apply to
the former, not as a matter of
administrative convenience but as a
dictate of due process.
o Whatever might have been said in CIR vs
CA should also apply mutatis mutandis to
the COMELEC when it comes to
promulgating rules and regulations which
adversely affect, or impose a heavy and
substantial burden on, the citizenry in a
matter that implicates the very nature of
government we have adopted: When, upon
the other hand, the administrative rule goes
beyond merely providing for the means that
can facilitate or render least cumbersome
the implementation of the law but
substantially adds to or increases the burden
of those governed, it behooves the agency to
accord at least to those directly affected a
chance to be heard, and thereafter to be
duly informed, before that new issuance is
given the force and effect of law.
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
6. Resolution No. 9615 does not impose an
unreasonable burden on the broadcast industry
o Petitioner GMA assails certain requirements
imposed on broadcast stations as
unreasonable. IT EXPLAINED:
o 5.40 Petitioner GMA currently operates and
monitors 21 FM and AM radio stations
nationwide and 8 originating television
stations (including its main transmitter in
Quezon City) which are authorized to
dechain national programs for airing and
insertion of local content and
advertisements.
o 5.41 Considering that said Rules declare it
unlawful in Section 7(d) thereof for a radio,
television station or other mass media to sell
or give for free airtime to a candidate in
excess of that allowed by law or by said
New Rules: petitioner GMA submits that
compliance with the New Rules in order to
avoid administrative or criminal liability
would be unfair, cruel and oppressive.
o 5.43 Broadcast mass media organizations
would surely encounter insurmountable
difficulties in monitoring the airtime
minutes spent by the numerous candidates
for various elective positions, in real time.
o 5.44 An inquiry with the (NTC) bears out
that there are 372 television stations and 398
AM and 800 FM radio stations nationwide
as of June 2012. In addition, there are 1,113
cable TV providers authorized by the NTC
to operate within the country as of the said
date.
o 5.45 Petitioner GMA estimates that
monitoring television broadcasts of all
authorized television station would involve
7,440 manhours per day. To aggravate
matters, since a candidate may also spend
his/her broadcasting minutes on cable TV,
additional 281,040 manhours per day
would have to be spent in monitoring the
various channels carried by cable TV
throughout the Philippines. As far as radio
broadcasts (both AM and FM stations) are
concerned, around 23,960 manhours per
day would have to be devoted by petitioner
GMA to obtain an accurate and timely
determination of a political candidate’s
remaining airtime minutes. During the
campaign period, petitioner GMA would
have to spend an estimated 27,494,720
manhours in monitoring the election
campaign commercials of the different
candidates in the country.
o 5.46 In order to carry-out the obligations
imposed by the New Rules, petitioner GMA
further estimates that it would need to
engage and train 39,055 additional
persons on an eight-hour shift, and assign
them all over the country to perform the
1
1
required monitoring of radio, television and
cable TV broadcasts. In addition, it would
likewise need to allot radio, television,
recording equipment and computers, as well
as telecommunications equipment, for this
surveillance and monitoring exercise, thus
imputing additional costs to the company.
o 5.47 Needless to say, such time, manpower
requirements, expense and effort would have
to be replicated by each and every radio
station to ensure that they have properly
monitored around 33 national and more
than 40,000 local candidates’ airtime
minutes and thus, prevent any risk of
administrative and criminal liability.
o COURT DID NOT AGREE. The
apprehensions of the petitioner appear more
to be the result of a misappreciation of the
real import of the regulation rather than a
real and present threat to its broadcast
activities.
o COURT SAID: The legal duty of
monitoring lies with the Comelec. Broadcast
stations are merely required to submit
certain documents to aid the Comelec in
ensuring that candidates are not sold airtime
in excess of the allowed limits. These
documents include:
 (1) certified true copies of
broadcast logs, certificates of
performance, and certificates of
acceptance, or other analogous
record on specified dates
 and (2) copies of all contract for
advertising, promoting or opposing
any political party or the candidacy
of any person for public office
within five (5) days after its signing
o [T]here is absolutely no duty on the
broadcast stations to do monitoring, much
less monitoring in real time. The Reporting
Requirement for the Comelec’s monitoring
is reasonable to ensure that parties and
candidates are afforded equal opportunities
to promote their respective candidacies
o Pursuant to Resolution No. 9631, the
respondent revised the third paragraph of
Section 9 (a): Appearance or guesting by a
candidate on any bona fide newscast, bona
fide news interview, bona fide news
documentary, if the appearance of the
candidate is incidental to the presentation of
the subject or subjects covered by the news
documentary, or on-the-spot coverage of
bona fide news events, including but not
limited to events sanctioned by the
Commission on Elections, political
conventions, and similar activities, shall not
be deemed to be broadcast election
propaganda within the meaning of this
provision.
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
o For purposes of monitoring by the
COMELEC and ensuring that parties and
candidates were afforded equal opportunities
to promote their candidacy, the media entity
shall give prior notice to the COMELEC,
through the appropriate Regional Election
Director (RED), or in the case of the
National Capital Region (NCR), the
Education and Information Department
(EID).
o If such prior notice is not feasible or
practicable, the notice shall be sent within
twenty-four (24) hours from the first
broadcast or publication.
o COURT SAID ALSO: Unlike the restrictive
aggregate-based airtime limits, the directive
to give prior notice is not unduly
burdensome and unreasonable, much less
could it be characterized as prior restraint
since there is no restriction on dissemination
of information before broadcast.
o Comparing the original with the revised
paragraph, one could readily appreciate what
the COMELEC had done – to modify the
requirement FROM “PRIOR
APPROVAL” TO “PRIOR NOTICE.”
While the former may be suggestive of a
censorial tone, thus inviting a charge of prior
restraint, the latter is more in the nature of a
CONTENT-NEUTRAL REGULATION
designed to assist the poll body to undertake
its job of ensuring fair elections without
having to undertake any chore of approving
or disapproving certain expressions.
o ALSO, THE RIGHT TO REPLY
PROVISION IS REASONABLE
o Section 14 of Resolution No. 9615, as
revised by Resolution No. 9631, provides:
All registered political parties, party-list
groups or coalitions and bona fide
candidates shall have the right to reply to
charges published or aired against them.
The reply shall be given publicity by the
newspaper, television, and/or radio station
which first printed or aired the charges with
the same prominence or in the same page or
section or in the same time slot as the first
statement.
o Registered political parties, party-list groups
or coalitions and bona fide candidates may
invoke the right to reply by submitting
within a non-extendible period of 48 hours
from first broadcast or publication, a formal
verified claim against the media outlet to the
COMELEC, through the appropriate RED.
The claim shall include a detailed
enumeration of the circumstances and
occurrences which warrant the invocation of
the right to reply and must be accompanied
by supporting evidence, such a copy of the
publication or recording of the television or
1
2
radio broadcast, as the case may be. If the
supporting evidence is not yet available due
to circumstances beyond the power of the
claimant, the latter shall supplement his
claim as soon as the supporting evidence
becomes available, without delay on the part
of the claimant. The claimant must likewise
furnish a copy of the verified claim and its
attachments to the media outlet concerned
prior to the filing of the claim with the
COMELEC.
o The COMELEC, through the RED, shall
view the verified claim within forty-eight
(48) hours from receipt thereof, including
supporting evidence, and if circumstances
warrant, give notice to the media outlet
involved for appropriate action, which shall,
within forty-eight (48) hours, submit its
comment, answer or response to the RED,
explaining the action it has taken to address
the claim. The media outlet must likewise
furnish a copy of the said comment, answer
or response to the claimant invoking the
right to reply.
o Should the claimant insist that his/her right
to reply was not addressed, he/she may file
the appropriate petition and/or complaint
before the Commission on Elections or its
field offices, which shall be endorsed to the
Clerk of Court.
o The attack on the validity of the “right to
reply” provision is primarily anchored on
the alleged ground of prior restraint.
Petitioner ABC states, inter alia: A
“conscious and detailed consideration” of
the interplay of the relevant interests – the
constitutional mandate granting candidates
the right to reply and the inviolability of the
constitutional freedom of expression,
speech, and the press – will show that the
Right to Reply, as provided for in the
Assailed Resolution, is an impermissible
restraint on these fundamental freedoms.
o The Constitution itself provides as part of
the means to ensure free, orderly, honest,
fair and credible elections, a task addressed
to the COMELEC to provide for a right to
reply. One is not merely to see the equation
as purely between the press and the right to
reply. Instead, the constitutionally-mandated
desiderata of free, orderly, honest, peaceful,
and credible elections would necessarily
have to be factored in trying to see where
the balance lies between press and the
demands of a right-to-reply.
o In Telecommunications and Broadcast
Attorneys of the Philippines, Inc. v.
COMELEC: In truth, radio and television
broadcasting companies, which are given
franchises, do not own the airwaves and
frequencies through which they transmit
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
broadcast signals and images. They are
merely given the temporary privilege of
using them. Since a franchise is a mere
privilege, the exercise of the privilege may
reasonably be burdened with the
performance by the grantee of some form of
public service.
o Relevant to this aspect are these passages
from an American Supreme Court decision
with regard to broadcasting, right to reply
requirements, and the limitations on speech:
 Although other speakers cannot be
licensed except under laws that
carefully define and narrow official
discretion, a broadcaster may be
deprived of his license and his
forum if the Commission decides
that such an action would serve
“the public interest, convenience,
and necessity.”
 Although the First Amendment
protects newspaper publishers from
being required to print the replies
of those whom they criticize, it
affords no such protection to
broadcasters; on the contrary, they
must give free time to the victims of
their criticism.
 The reasons for these distinctions
are complex, but two have
relevance to the present case.
 First, the broadcast media have
established a uniquely pervasive
presence in the lives of all
Americans. Patently offensive,
indecent material presented over
the airwaves confronts the citizen
not only in public, but also in the
privacy of the home, where the
individual's right to be left alone
plainly outweighs the First
Amendment rights of an intruder.
Because the broadcast audience is
constantly tuning in and out, prior
warnings cannot completely protect
the listener or viewer from
unexpected program content. To
say that one may avoid further
offense by turning off the radio
when he hears indecent language is
like saying that the remedy for an
assault is to run away after the
first blow. One may hang up on an
indecent phone call, but that option
does not give the caller a
constitutional immunity or avoid a
harm that has already taken place.
 Second, broadcasting is uniquely
accessible to children, even those
too young to read. Although
Cohen's written message might
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have been incomprehensible to a
first grader, Pacifica's broadcast
could have enlarged a child's
vocabulary in an instant. Other
forms of offensive expression may
be withheld from the young without
restricting the expression at its
source. Bookstores and motion
picture theaters, for example, may
be prohibited from making indecent
material available to children.
 Ginsberg v. New York:
the government's interest
in the “well-being of its
youth” and in supporting
“parents' claim to
authority in their own
household” justified the
regulation of otherwise
protected expression. The
ease with which children
may obtain access to
broadcast material amply
justify special treatment of
indecent broadcasting.
o Given the foregoing considerations, the
traditional notions of preferring speech and
the press over so many other values of
society do not readily lend itself to this
particular matter. Instead, additional weight
should be accorded on the constitutional
directive to afford a right to reply.
 If there was no such mandate, then
the submissions of petitioners may
more easily commend themselves
for this Court’s acceptance. But as
noted above, this is not the case.
o In fine, when it comes to election and the
exercise of freedom of speech, of expression
and of the press, the latter must be properly
viewed in context as being necessarily made
to accommodate the imperatives of
fairness by giving teeth and substance to the
right to reply requirement.
WHEREFORE, premises considered, the petitions are
PARTIALLY GRANTED, Section 9 (a) of Resolution No. 9615,
as amended by Resolution No. 9631, is declared
UNCONSTITUTIONAL and, therefore, NULL and VOID. The
constitutionality of the remaining provisions of Resolution No.
9615, as amended by Resolution No. 9631, is upheld and
remain in full force and effect.
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
EMILIO RAMON EJERCITO VS COMELEC
FACTS:
 Contested in this petition for certiorari under Rule 64,
in relation to Rule 65 of ROC, is the May 21, 2014
Resolution of COMELEC En Banc in SPA No. 13-
306 (DC) which affirmed the September 26, 2013
Resolution of the COMELEC 1st Division granting
the petition for disqualification filed by private
respondent Edgar “Egay” S. San Luis against
petitioner Emilio Ramon “E.R.” P. Ejercito
 3 days prior to the May 13, 2013 National and Local
Elections, a petition for disqualification was filed by
San Luis against Ejercito, who was a fellow
gubernatorial candidate and, at the time, the
incumbent Governor of the Province of Laguna
 FIRST CAUSE OF ACTION
 Ejercito during the campaign period for 2013 local
election, distributed to the electorates of the province
of Laguna the so-called “Orange Card” with an intent
to influence, induce or corrupt the voters in voting for
his favor.
 His cohorts claimed that the said “Orange Card”
could be used in any public hospital within the
Province of Laguna for their medical needs as
declared by the statements of witnesses
 The so-called “Orange Card” is considered a material
consideration in convincing the voters to cast their
votes for [Ejercito’s] favor in clear violation of the
Sec. 68 of OEC: Disqualifications. – Any candidate
who, in an action or protest in which he is a party is
declared by final decision by a competent court guilty
of, or found by the Commission of having:
o (a) given money or other material
consideration to influence, induce or corrupt
the voters or public officials performing
electoral functions;
o (b) committed acts of terrorism to enhance
his candidacy;
o (c) spent in his election campaign an amount
in excess of that allowed by this Code;
o (d) solicited, received or made any
contribution prohibited under Sections 89,
95, 96, 97 and 104;
o or (e) violated any of Sections 80, 83, 85,
86, and 261, paragraphs d, e, k, v, and cc,
subparagraph 6, shall be disqualified from
continuing as a candidate, or if he has been
elected, from holding the office.
o Any person who is a permanent resident of
or an immigrant to a foreign country shall
not be qualified to run for any elective office
under this Code, unless said person has
waived his status as permanent resident or
immigrant of a foreign country in
accordance with the residence requirement
provided for in the election laws.”
 SECOND CAUSE OF ACTION
Based on the records of the Provincial COMELEC,
the Province of Laguna has a total of 1,525,522
registered electorate.
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 Section 5 of COMELEC Resolution No. 9615,
otherwise known as the Rules and Regulations
Implementing FAIR ELECTION ACT provides:
“Authorized Expenses of Candidates and Parties. –
The aggregate amount that a candidate or party may
spent for election campaign shall be as follows:
 For candidates – Three pesos (P3.00) for every voter
currently registered in the constituency where the
candidate filed his certificate of candidacy.
 For other candidates without any political party and
without any support from any political party – Five
pesos (P5.00) for every voter currently registered in
the constituency where the candidate filed his
certificate of candidacy.
 For Political Parties and party-list groups – Five
pesos (P5.00) for every voter currently registered in
the constituency or constituencies where it has
official candidates.
 Accordingly, a candidate for the position of
Provincial Governor of Laguna is only authorized to
incur an election expense amounting to
P4,576,566.00. For television campaign commercials
alone, [Ejercito] already spent the sum of
PhP23,730.784 based on our party’s official
monitoring. Even assuming that [Ejercito] was given
30% discount as prescribed under the Fair Election
Act, he still exceeded in the total allowable
expenditures for which he paid the sum of
P16,611,549
 [Ejercito] committed an election offense as provided
for under Section 35 of COMELEC Resolution No.
9615, which provides “Election Offense. – Any
violation of R.A. No. 9006 and these Rules shall
constitute an election offense punishable under the
first and second paragraph of Section 264 of the
Omnibus Election Code in addition to administrative
liability, whenever applicable.
 On the other hand, the effect of disqualification is
provided under Sec. 6 of Republic Act No. 6646,
which states “Effect of Disqualification Case. – Any
candidate who has been declared by final judgment to
be disqualified shall not be voted for, and the votes
cast for him shall not be counted. If for any reason a
candidate is not declared by final judgment before an
election to be disqualified and he is voted for and
receives the winning number of votes in such
election, the Court or Commission shall continue
with the trial and hearing of the action, inquiry or
protest and, upon motion of the complainant or any
intervenor, may during the pendency thereof order
the suspension of the proclamation of such candidate
whenever the evidence of [his] guilt is strong.”
 Ejercito argues that the airing of the commercials
were without his consent and that expenditure is not
the same as contributions;
o (i) it violated the right of petitioner to due
process when it ruled for the disqualification
of petitioner even if it was never prayed for
in the petition. worse, there is yet no finding
of guilt by a competent court or a finding of
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
fact stating that petitioner actually
committed the alleged election offense of
overspending;
o (ii) it relied on a documentary exhibit
(advertising contract) which was not even
formally offered as evidence; [and]
o (iii) it disqualified petitioner for an act done
by a third party who simply exercised its
right to free expression without the
knowledge and consent of petitioner
COURT SAID:
THE PETITION FILED BY SAN LUIS AGAINST
EJERCITO IS FOR THE LATTER’S
DISQUALIFICATION AND PROSECUTION FOR
ELECTION OFFENSE
 Ejercito insists that his alleged acts of giving material
consideration in the form of “Orange Cards” and
election overspending are considered as election
offenses under Section 35 of COMELEC Resolution
No. 9615, in relation to Section 1349 of R.A. No.
9006, and punishable under Section 264 of the OEC.
Considering that San Luis’ petition partakes of the
nature of a complaint for election offenses, the
COMELEC First Division has no jurisdiction over
the same based on COMELEC Resolution No. 9386
and Section 265 of the OEC.
 According to him, San Luis’ additional prayer for
disqualification in the Memorandum is a substantial
amendment to the Petition as it constitutes a material
deviation from the original cause of action – from a
complaint for election offenses to a petition for
disqualification. Since such substantial amendment
was effected after the case was set for hearing,
Ejercito maintains that the same should have been
allowed only with prior leave of the COMELEC First
Division pursuant to Section 2, Rule 9of the
COMELEC Rules of Procedure, which San Luis
never did.
 Prohibited acts covered by Section 68 (e) refer to:
a. election campaign or partisan political
activity outside the campaign period
(Section 80);
b. removal, destruction or defacement of
lawful election propaganda (Section 83);
c. certain forms of election propaganda
(Section 85); violation of rules and
regulations on election propaganda through
mass media;
d. coercion of subordinates (Section 261 [d]);
e. threats, intimidation, terrorism, use of
fraudulent device or other forms of coercion
(Section 261 [e]);
f. unlawful electioneering (Section 261 [k]);
g. release, disbursement or expenditure of
public funds (Section 261 [v]);
h. solicitation of votes or undertaking any
propaganda on the day of the election within
the restricted areas (Section 261 [cc], sub-
par.6).
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 All the offenses mentioned in Section 68 refer to
election offenses under the OEC, not to violations of
other penal laws. In other words, offenses that are
punished in laws other than in the OEC cannot be a
ground for a Section 68 petition.
 [T]he jurisdiction of the COMELEC to disqualify
candidates is limited to those enumerated in Sec 68
 All other election offenses are beyond the ambit of
COMELEC jurisdiction. They are criminal and not
administrative in nature.
 Pursuant to Sections 265+268 of the [OEC], the
power of the COMELEC is confined to the conduct
of preliminary investigation on the alleged election
offenses for the purpose of prosecuting the alleged
offenders before the regular courts of justice, viz:
“Section 265. Prosecution. – The Commission shall,
through its duly authorized legal officers, have the
exclusive power to conduct preliminary investigation of
all election offenses punishable under this Code, and to
prosecute the same. The Commission may avail of the
assistance of other prosecuting arms of the government:
Provided, however, That in the event that the Commission
fails to act on any complaint w/n 4 months from its filing,
the complainant may file the complaint with the office of
the fiscal or with the Ministry of Justice for proper
investigation and prosecution, if warranted.
Section 268. Jurisdiction. – The RTC shall have the
exclusive original jurisdiction to try and decide any
criminal action or proceeding for violation of this Code,
except those relating to the offense of failure to register or
failure to vote which shall be under the jurisdictions of
metropolitan or municipal trial courts. From the
decision of the courts, appeal will lie as in other criminal
cases.”
 Section 2, Rule 9 of the COMELEC Rules of
Procedure unapplicable, there being no substantial
amendment to San Luis’ petition that constitutes a
material deviation from his original causes of action.
 COMELEC Resolution No. 9386 and Section 265 of
the OEC do not apply since both refer solely to the
prosecution of election offenses. Specifically,
COMELEC Resolution No. 9386 is an amendment to
Rule 34 of the COMELEC Rules of Procedure on the
prosecution of election offenses, while Section 265 of
the OEC is found under Article XXII of said law
pertaining also to election offenses.
THE CONDUCT OF PRELIMINARY INVESTIGATION
IS NOT REQUIRED IN THE RESOLUTION OF THE
ELECTORAL ASPECT OF A DISQUALIFICATION
CASE
Section 5, Rule 25 of COMELEC Resolution No. 9523 states:
Section 5. Effect of Petition if Unresolved Before Completion
of Canvass. – If a Petition for Disqualification is unresolved
by final judgment on the day of elections, the petitioner may
file a motion with the Division or Commission En Banc where
the case is pending, to suspend the proclamation of the
candidate concerned, provided that the evidence for the
grounds to disqualify is strong. For this purpose, at least (3)
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
days prior to any election, the Clerk of the Commission shall
prepare a list of pending cases and furnish all Commissioners
copies of said the list. In the event that a candidate with an
existing and pending Petition to disqualify is proclaimed
winner, the Commission shall continue to resolve the said
Petition.
 It is expected that COMELEC Resolution No. 9523 is
silent on the conduct of PI because it merely
amended, among others, Rule 25 of the COMELEC
Rules of Procedure, which deals with
disqualification of candidates. In disqualification
cases, the COMELEC may designate any of its
officials, who are members of the Philippine Bar, to
hear the case and to receive evidence only in cases
involving barangay officials.
 As aforementioned, the present rules of procedure in
the investigation and prosecution of election offenses
in the COMELEC, which requires preliminary
investigation, is governed by COMELEC
Resolution No. 9386. Under said Resolution, all
lawyers in the COMELEC who are:
a. Election Officers in the ("NCR"),
b. Provincial Election Supervisors,
c. Regional Election Attorneys,
d. Assistant Regional Election Directors,
e. Regional Election Directors and
f. lawyers of the Law Department
are authorized to conduct PI of complaints involving
election offenses under the election laws which may
be filed directly with them, or which may be indorsed
to them by the COMELEC.
 Ejercito’s reliance on COMELEC Resolution No.
2050 adopted on November 3, 1988 is misplaced. It
reads:
1-Any complaint for the disqualification of a duly registered
candidate based upon any of the grounds specifically
enumerated under Section 68 of the OEC, filed directly with
the Commission before an election in which the respondent is
a candidate, shall be inquired into by the Commission for the
purpose of determining whether the acts complained of have
in fact been committed. Where the inquiry by the Commission
results in a finding before election, that the respondent
candidate did in fact commit the acts complained, the
Commission shall order the disqualification of the respondent
candidate from continuing as such candidate.
In case such complaint was not resolved before the election,
the Commission may motu proprio, or [on] motion of any of
the parties, refer the complaint to the [Law] Department of the
Commission as the instrument of the latter in the exercise of
its exclusive power to conduct a preliminary investigation of
all cases involving criminal infractions of the election laws.
Such recourse may be availed of irrespective of whether the
respondent has been elected or has lost in the election.
2-Any complaint for disqualification based on Section 68 of
the Omnibus Election Code in relation to Section 6 of Rep.
Act No. 6646 filed after the election against a candidate who
has already been proclaimed as winner shall be dismissed as a
disqualification case. However, the complaint shall be referred
for preliminary investigation to the Law Department of the
Commission.
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Where a similar complaint is filed after election but before
proclamation of the respondent candidate, the complaint shall,
nevertheless, be dismissed as a disqualification case.
However, the complaint shall be referred for preliminary
investigation to the Law Department. If, before proclamation,
the Law Department makes a prima facie finding of guilt and
the corresponding information has been filed with the
appropriate trial court, the complainant may file a petition for
suspension of the proclamation of the respondent with the
court before which the criminal case is pending and the said
court may order the suspension of the proclamation if the
evidence of guilt is strong.
3-The Law Department shall terminate the preliminary
investigation within thirty (30) days from receipt of the
referral and shall submit its study, report and recommendation
to the Commission en banc within five (5) days from the
conclusion of the preliminary investigation. If it makes a
prima facie finding of guilt, it shall submit with such study the
Information for filing with the appropriate court.
In Bagatsing v. COMELEC: the Court stated that the above-
quoted resolution covers two (2) different scenarios:
 First, a complaint for disqualification filed before the
election which must be inquired into by the
COMELEC for the purpose of determining whether
the acts complained of have in fact been committed.
Where the inquiry results in a finding before the
election, the COMELEC shall order the candidate's
disqualification. In case the complaint was not
resolved before the election, the COMELEC may
motu propio or on motion of any of the parties, refer
the said complaint to the Law Department of the
COMELEC for preliminary investigation.
 Second, a complaint for disqualification filed after
the election against a candidate (a) who has not yet
been proclaimed as winner, or (b) who has already
been proclaimed as winner. In both cases, the
complaint shall be dismissed as a disqualification
case but shall be referred to the Law Department
of the COMELEC for PI. However, if before
proclamation, the Law Department makes a prima
facie finding of guilt and the corresponding
information has been filed with the appropriate trial
court, the complainant may file a petition for
suspension of the proclamation of the respondent
with the court before which the criminal case is
pending and the said court may order the suspension
of the proclamation if the evidence of guilt is strong.
 However, with respect to Paragraph 1 of COMELEC
Resolution No. 2050, which is the situation in this
case, We held in Sunga: Resolution No. 2050 as
interpreted in Silvestre v. Duavit infringes on Sec. 6
of RA No. 6646
 Clearly, the legislative intent is that the COMELEC
should continue the trial and hearing of the
disqualification case to its conclusion, i.e., until
judgment is rendered thereon.
o The word “shall” signifies that this
requirement of the law is mandatory,
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
operating to impose a positive duty which
must be enforced.
o The implication is that the COMELEC is
left with no discretion but to proceed with
the disqualification case even after the
election.
o In providing for the outright dismissal of
the disqualification case which remains
unresolved after the election, Silvestre v.
Duavit in effect disallows what RA No.
6646 imperatively requires.
o This amounts to a quasi-judicial
legislation by the COMELEC which
cannot be countenanced and is invalid for
having been issued beyond the scope of its
authority.
o Interpretative rulings of quasi-judicial
bodies or administrative agencies must
always be in perfect harmony with statutes
and should be for the sole purpose of
carrying their general provisions into
effect.
o In case of a discrepancy between the basic
law and an interpretative or administrative
ruling, the basic law prevails.
 Besides, the deleterious effect of the Silvestre ruling
is not difficult to foresee. A candidate guilty of
election offenses would be undeservedly rewarded,
instead of punished, by the dismissal of the
disqualification case against him simply because
the investigating body was unable, for any reason
caused upon it, to determine before the election if the
offenses were indeed committed by the candidate
sought to be disqualified.
 All that the erring aspirant would need to do
is to employ delaying tactics so that the
disqualification case based on the
commission of election offenses would not
be decided before the election. This scenario
is productive of more fraud which
certainly is not the main intent and purpose
of the law.
 The “exclusive power [of the COMELEC] to conduct
a PI of all cases involving criminal infractions of the
election laws” stated in Par. 1 of COMELEC
Resolution No. 2050 pertains to the criminal aspect
of a disqualification case. An election offense has its
criminal and electoral aspects. While its criminal
aspect to determine the guilt or innocence of the
accused cannot be the subject of summary hearing, its
electoral aspect to ascertain whether the offender
should be disqualified from office can be determined
in an administrative proceeding that is summary in
character.
o This Court said in Sunga and Lanot: The
electoral aspect of a disqualification case
determines whether the offender should be
disqualified from being a candidate or from
holding office. Proceedings are summary in
character and require only clear
preponderance of evidence. An erring
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candidate may be disqualified even without
prior determination of probable cause in a
preliminary investigation. The electoral
aspect may proceed independently of the
criminal aspect, and vice-versa.
 The two aspects account for the variance of
the rules on disposition and resolution of
disqualification cases filed before or after an
election. When the disqualification case is
filed before the elections, the question of
disqualification is raised before the voting
public. If the candidate is disqualified after
the election, those who voted for him
assume the risk that their votes may be
declared stray or invalid. There is no such
risk if the petition is filed after the elections.
 The Lanot case contemplates two referrals
for the conduct of investigation – first, to the
Regional Election Director, prior to the
issuance of the COMELEC First Division’s
resolution, and second, to the Law
Department, following the reversal by the
COMELEC En Banc.
THE COMELEC EN BANC PROPERLY CONSIDERED
AS EVIDENCE THE ADVERTISING CONTRACT
DATED MAY 8, 2013
 Ejercito likewise asserts that the Advertising Contract
dated May 8, 2013 should not have been relied upon
by the COMELEC.
o First, it was not formally offered in evidence
pursuant to Section 34, Rule 132 of the
Rules and he was not even furnished with a
copy thereof.
o Second, even if Section 34, Rule 132 does
not apply, administrative bodies exercising
quasi-judicial functions are nonetheless
proscribed from rendering judgment based
on evidence that was never presented and
could not be controverted.
o third, the presentation of the advertising
contracts, which are highly disputable and
on which no hearing was held for the
purpose of taking judicial notice in
accordance with Section 3, Rule 129 of the
Rules, cannot be dispensed with by
COMELEC’s claim that it could take
judicial notice.
 Contrary to Ejercito’s claim, Section 34, Rule 132 of
the Rules is inapplicable. Section 4, Rule 171 of the
Rules of Court is clear enough in stating that it shall
not apply to election cases except by analogy or in a
suppletory character and whenever practicable and
convenient. Nowhere from COMELEC Resolution
No. 9523 requires that documentary evidence should
be formally offered in evidence. AGAIN, electoral
aspect of a disqualification case is done through an
administrative proceeding which is summary in
character.
 Granting, for argument’s sake, that Section 4,
Rule 1 of the Rules of Court applies, there have
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
been instances when we suspended the strict
application of the rule in the interest of substantial
justice, fairness, and equity. Since rules of procedure
are mere tools designed to facilitate the attainment of
justice, and can be suspended when the rigid
application thereof tends to frustrate rather than
promote the ends of justice. Even Sections 3 and 4,
Rule 1 of the COMELEC Rules of Procedure
fittingly declare that “[the] rules shall be liberally
construed in order to promote the effective and
efficient implementation of the objectives of ensuring
the holding of free, orderly, honest, peaceful and
credible elections and to achieve just, expeditious and
inexpensive determination and disposition of every
action and proceeding brought before the
Commission” and that “[in] the interest of justice and
in order to obtain speedy disposition of all matters
pending before the Commission, these rules or any
portion thereof may be suspended by the
Commission.”
 In Hayudini v. COMELEC: This liberality is for the
purpose of promoting the effective and efficient
implementation of its objectives – ensuring the
holding of free, orderly, honest, peaceful, and
credible elections, as well as achieving just,
expeditious, and inexpensive determination and
disposition of every action and proceeding brought
before the COMELEC. Unlike an ordinary civil
action, an election contest is imbued with public
interest.
 Further, Ejercito’s dependence on Ang Tibay is
weak. The essence of due process is simply an
opportunity to be heard, or, as applied to
administrative proceedings, an opportunity to explain
one's side or an opportunity to seek for a
reconsideration of the action or ruling complained of.
Any seeming defect in its observance is cured by the
filing of a motion for reconsideration and denial of
due process cannot be successfully invoked by a
party who had the opportunity to be heard thereon. In
this case, it is undisputed that Ejercito filed a motion
for reconsideration before the COMELEC En Banc.
Despite this, he did not rebut the authenticity and due
execution of the advertising contracts when he
decided not to discuss the factual findings of the
COMELEC First Division on the alleged ground that
it may be construed as a waiver of the jurisdictional
issues that he raised.
 We agree with San Luis and the Office of the
Solicitor General that, pursuant to Section 2, Rule
129, the COMELEC has the discretion to properly
take judicial notice of the Advertising Contract dated
May 8, 2013. In accordance with R.A. No. 9006, the
COMELEC, through its Campaign Finance Unit, is
empowered to: Monitor fund raising and spending
activities; Receive and keep reports and statements
of candidates, parties, contributors and election
contractors, and advertising contracts of mass media
entities; and MORE
 The COMELEC may properly take and act on the
advertising contracts without further proof from the
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parties herein. COMELEC already has knowledge of
the contracts for being ascertainable from its very
own records. Said contracts are ought to be known by
the COMELEC because of its statutory function as
the legal custodian of all advertising contracts
promoting or opposing any candidate during the
campaign period. COMELEC has the authority and
discretion to compare the submitted advertising
contracts with the certified true copies of the
broadcast logs, certificates of performance or other
analogous records which a broadcast station or entity
is required to submit for the review and verification
of the frequency, date, time and duration of
advertisements aired.
 To be precise, R.A. No. 9006 provides: Sec. 4.
Requirements for Published or Printed and Broadcast
Election Propaganda. – 4.3 Print, broadcast or
outdoor advertisements donated to the candidate or
political party shall not be printed, published,
broadcast or exhibited without the written acceptance
by the said candidate or political party. Such written
acceptance shall be attached to the advertising
contract and shall be submitted to the COMELEC as
provided in Subsection 6.3 hereof.
 Sec. 6. Equal Access to Media Time and Space. –
QUOTE 6.2 AND 6.3
 The implementing guidelines of the above-quoted
provisions are found in
Rule 5 of COMELEC Resolution No. 9476 – Section 2.
Submission of Copies of Advertising Contracts. – All media
entities shall submit a copy of its advertising and or broadcast
contracts, media purchase orders, booking orders, or other
similar documents to the Commission through its Campaign
Finance Unit, accompanied by a summary report in the
prescribed form (Annex “E”) together with official receipts
issued for advertising, promoting or opposing a party, or the
candidacy of any person for public office, within five (5) days
after its signing, through:
 a. For Media Entities in the NCR -The Education and
Information Department (EID), which shall furnish
copies thereof to the Campaign Finance Unit of the
Commission.
 b. For Media Entities outside of the NCR The
City/Municipal Election Officer (EO) concerned who
shall furnish copies thereof to the Education and
Information Department of the Commission within
five (5) days after the campaign periods. The EID
shall furnish copies thereof to the Campaign Finance
Unit of the Commission.
It shall be the duty of the EID to formally inform
media entities that the latter’s failure to comply with
the mandatory provisions of this Section shall be
considered an election offense punishable pursuant to
Section 13 of Republic Act No. 9006
and in COMELEC Resolution No. 9615 SECTION 9.
Requirements and/or Limitations on the Use of Election
Propaganda through Mass Media. – All parties and bona fide
candidates shall have equal access to media time and space for
their election propaganda during the campaign period subject
to the following requirements and/or limitations:
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
a. Broadcast Election Propaganda x x x Provided, further, that
a copy of the broadcast advertisement contract be furnished to
the Commission, thru the Education and Information
Department, within five (5) days from contract signing.
d. Common requirements/limitations x x x
(3) For the above purpose, each broadcast entity and website
owner or administrator shall submit to the Commission a
certified true copy of its broadcast logs, certificates of
performance, or other analogous record, including certificates
of acceptance as required in Section 7(b) of these Guidelines,
for the review and verification of the frequency, date, time and
duration of advertisements aired for any candidate or party
through:
^For Broadcast Entities in the NCR – The Education and
Information Department (EID) which in turn shall furnish
copies thereof to the Campaign Finance Unit (CFU) of the
Commission within five days from receipt thereof.
^For Broadcast Entities outside of the NCR – The
City/Municipal Election Officer (EO) concerned, who in turn,
shall furnish copies thereof to the Education and Information
Department (EID) of the Commission which in turn shall
furnish copies thereof to the Campaign Finance Unit (CFU) of
the Commission within five (5) days from the receipt thereof.
^For website owners or administrators – The City/Municipal
Election Officer (EO) concerned, who in turn, shall furnish
copies thereof to the Education and Information Department
(EID) of the Commission which in turn shall furnish copies
thereof to the Campaign Finance Unit (CFU) of the
Commission within five (5) days from the receipt thereof.
^All broadcast entities shall preserve their broadcast logs for a
period of five (5) years from the date of broadcast for
submission to the Commission whenever required.
Certified true copies of broadcast logs, certificates of
performance, and certificates of acceptance, or other
analogous record shall be submitted.
Ejercito should be disqualified for spending in his election
campaign an amount in excess of what is allowed by the
OEC
 Ejercito claims that the advertising contracts between
ABS-CBN Corporation and Scenema Concept
International, Inc. were executed by an identified
supporter without his knowledge and consent as, in
fact, his signature thereon was obviously forged.
Even assuming that such contract benefited him,
Ejercito alleges that he should not be penalized for
the conduct of third parties who acted on their own
without his consent.
 Citing Citizens United v. Federal Election
Commission decided by the US Supreme Court, he
argues that every voter has the right to support a
particular candidate in accordance with the free
exercise of his or her rights of speech and of
expression, which is guaranteed in Section 4, Article
III of the 1987 Constitution.
 He believes that an advertising contract paid for by a
third party without the candidate’s knowledge and
consent must be considered a form of political speech
that must prevail against the laws suppressing it,
whether by design or inadvertence.
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 Further, Ejercito advances the view that COMELEC
Resolution No. 9476 distinguishes between
“contribution” and “expenditure” and makes no
proscription on the medium or amount of
contribution.
 He also stresses that it is clear from COMELEC
Resolution No. 9615 that the limit set by law applies
only to election expenditures of candidates and not to
contributions made by third parties
COURT SAID:
 We refuse to believe that the advertising contracts
between ABS-CBN Corporation and Scenema
Concept International, Inc. were executed without
Ejercito’s knowledge and consent. His express
conformity to the advertising contracts is actually a
must because non-compliance is considered as an
election offense.
1. Notably, R.A. No. 9006 explicitly directs that
broadcast advertisements donated to the candidate
shall not be broadcasted without the written
acceptance of the candidate, which shall be attached
to the advertising contract and shall be submitted to
the COMELEC, and that, in every case, advertising
contracts shall be signed by the donor, the candidate
concerned or by the duly-authorized representative of
the political party.
2. COMELEC Resolution No. 9476 requires that
election propaganda materials donated to a candidate
shall not be broadcasted unless it is accompanied by
the written acceptance of said candidate, which shall
be in the form of an official receipt in the name of the
candidate and must specify the description of the
items donated, their quantity and value, and that, in
every case, the advertising contracts, media purchase
orders or booking orders shall be signed by the
candidate concerned or by the duly authorized
representative of the party and, in case of a donation,
should be accompanied by a written acceptance of
the candidate, party or their authorized
representatives.
3. COMELEC Resolution No. 9615 also
unambiguously states that it shall be unlawful to
broadcast any election propaganda donated or given
free of charge by any person or broadcast entity to a
candidate without the written acceptance of the said
candidate and unless they bear and be identified by
the words “airtime for this broadcast was provided
free of charge by” followed by the true and correct
name and address of the donor.
 This Court cannot give weight to Ejercito’s
representation that his signature on the advertising
contracts was a forgery. The issue is a belated claim,
raised only for the first time in this petition for
certiorari. It is a rudimentary principle of law that
matters neither alleged in the pleadings nor raised
during the proceedings below cannot be ventilated for
the first time on appeal before the Supreme Court. It
would be offensive to the basic rules of fair play and
justice to allow Ejercito to raise an issue that was not
brought up before the COMELEC.
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
 whether the advertising contracts were executed
without Ejercito’s knowledge and consent, and
whether his signatures thereto were fraudulent, are
issues of fact. Any factual challenge has no place in a
Rule 65 petition. This Court is not a trier of facts and
is not equipped to receive evidence and determine the
truth of factual allegations. Instead, the findings of
fact made by the COMELEC, or by any other
administrative agency exercising expertise in its
particular field of competence, are binding on the
Court.
 Having determined that the subject TV
advertisements were done and broadcasted with
Ejercito’s consent, it follows that Citizens United
does not apply. In said US case, a non-profit
corporation sued the Federal Election Commission,
assailing, among others, the constitutionality of a ban
on corporate independent expenditures for
electioneering communications under 2 U.S.C.S. §
441b. The corporation released a documentary film
unfavorable of then-Senator Hillary Clinton, who was
a candidate for the Democratic Party's Presidential
nomination. It wanted to make the film available
through video-on-demand within thirty (30) days of
the primary elections, and it produced advertisements
to promote the film. However, federal law prohibits
all corporations – including non-profit advocacy
corporations – from using their general treasury funds
to make independent expenditures for speech that is
an "electioneering communication"97 or for speech
that expressly advocates the election or defeat of a
candidate within thirty (30) days of a primary
election and sixty (60) days of a general election. The
US Supreme Court held that the ban imposed under §
441b on corporate independent expenditures violated
the First Amendment98 because the Government
could not suppress political speech on the basis of the
speaker's identity as a non-profit or for-profit
corporation.
 In said US case, The US Supreme Court held that the
ban imposed under § 441b on corporate independent
expenditures violated the First Amendment because
the Government could not suppress political speech
on the basis of the speaker's identity as a non-profit
or for-profit corporation.
 The previous decisions of the US Supreme Court in
Austin v. Michigan Chamber of Commerce (which
ruled that political speech may be banned based on
the speaker's corporate identity) and the relevant
portion of McConnell v. Federal Election
Commission (which upheld the limits on
electioneering communications in a facial challenge)
were, in effect, overruled by Citizens United.
 Like Citizens United is the 1976 case of Buckley v.
Valeo. the US Supreme Court ruled, among other
issues elevated to it for resolution, on a provision of
the Federal Election Campaign Act of 1971, as
amended, (FECA)102 which limits independent
political expenditures by an individual or group
advocating the election or defeat of a clearly
identified candidate for federal office to $1,000 per
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year. Majority of the US Supreme Court expressed
the view that the challenged provision is
unconstitutional.
 Even so, the rulings in Citizens United and Buckley
find bearing only on matters related to “independent
expenditures,” an election law concept which has
no application in this jurisdiction. In the US
context, independent expenditures for or against a
particular candidate enjoy constitutional protection.
They refer to those expenses made by an individual, a
group or a legal entity which are not authorized or
requested by the candidate, an authorized committee
of the candidate, or an agent of the candidate; they
are expenditures that are not placed in cooperation
with or with the consent of a candidate, his agents, or
an authorized committee of the candidate. In contrast,
there is no similar provision here in the Philippines.
In fact, R.A. No. 9006105 and its implementing rules
and regulations specifically make it unlawful to print,
publish, broadcast or exhibit any print, broadcast or
outdoor advertisements donated to the candidate
without the written acceptance of said candidate.
 If at all, another portion of the Buckley decision is
significant to this case. One of the issues resolved
therein is the validity of a provision of the FECA
which imposes $1,000 limitation on political
contributions by individuals and groups to candidates
and authorized campaign committees. Five justices of
the nine-member US Supreme Court sustained the
challenged provision on the grounds that it does not
violate First Amendment speech and association
rights or invidiously discriminate against non-
incumbent candidates and minority party candidates
but is supported by substantial governmental interests
in limiting corruption and the appearance of
corruption.
 Until now, the US Supreme Court has not overturned
the ruling that, with respect to limiting political
contributions by individuals and groups, the
Government’s interest in preventing quid pro quo
corruption or its appearance was “sufficiently
important” or “compelling” so that the interest would
satisfy even strict scrutiny.
 In any event, this Court should accentuate that resort
to foreign jurisprudence would be proper only if no
law or jurisprudence is available locally to settle a
controversy and that even in the absence of local
statute and case law, foreign jurisprudence are merely
persuasive authority at best since they furnish an
uncertain guide.(Republic of the Philippines v.
Manila Electric Company and Central Bank
Employees Assoc., Inc. v. BSP)
 Indeed, in Osmeña v. COMELEC, this Court, in
reaffirming its ruling in National Press Club v.
COMELEC that Section 11 (b) of R.A. No. 6646
does not invade and violate the constitutional
guarantees comprising freedom of expression,
remarked in response to the dissent of Justice Flerida
Ruth P. Romero: (quotes the following from Buckley
v. Valeo: [T]he concept that the government may
restrict the speech of some elements in our society in
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
order to enhance the relative voice of the others is
wholly foreign to the First Amendment which was
designed to “secure the widest possible dissemination
of information from diverse and antagonistic
sources” and “to assure unfettered interchange of
ideas for the bringing about of political and social
changes desired by the people.”
 Voting after all is speech. We speak of it as the voice
of the people – even of God. The notion that the
government may restrict the speech of some in order
to enhance the relative voice of others may be foreign
to the American Constitution. It is not to the
Philippine Constitution, being in fact an
animating principle of that document.
 Indeed, Art. IX-C, §4 is not the only provision in the
Constitution mandating political equality. Art. XIII,
§1 requires Congress to give the “highest priority” to
the enactment of measures designed to reduce
political inequalities, while Art. II, §26 declares as a
fundamental principle of our government “equal
access to opportunities for public service.” Access to
public office will be denied to poor candidates if they
cannot even have access to mass media in order to
reach the electorate. What fortress principle trumps
or overrides these provisions for political equality?
 That the framers contemplated regulation of political
propaganda similar to §11(b) is clear from the
following portion of the sponsorship speech of
Commissioner Vicente B. Foz: Regarding the
regulation by the Commission of the enjoyment or
utilization of franchises or permits for the operation
of transportation and other public utilities, media of
communication or information, all grants, special
privileges or concessions granted by the Government,
there is a provision that during the election period,
the Commission may regulate, among other things,
the rates, reasonable free space, and time allotments
for public information campaigns and forums among
candidates for the purpose of ensuring free, orderly,
honest and peaceful elections. This has to do with the
media of communication or information.
Proceeding from the above, the Court shall now rule on
Ejercito’s proposition that the legislature imposes no legal
limitation on campaign donations. He vigorously asserts that
COMELEC Resolution No. 9476 distinguishes between
“contribution” and “expenditure” and makes no
proscription on the medium or amount of contribution made
by third parties in favor of the candidates, while the limit set
by law, as appearing in COMELEC Resolution No. 9615,
applies only to election expenditures of candidates.
 Section 13 of R.A. No. 7166 sets the current
allowable limit on expenses of candidates and
political parties for election campaign, thus:
SEC. 13. Authorized Expenses of Candidates and Political
Parties. – The aggregate amount that a candidate or registered
political party may spend for election campaign shall be as
follows:
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(a) For candidates – Ten pesos (P10.00) for President and Vice
President; and for other candidates, Three pesos (P3.00) for
every voter currently registered in the constituency where he
filed his certificate of candidacy: Provided, That, a candidate
without any political party and without support from any
political party may be allowed to spend Five pesos (P5.00) for
every such voter; and
(b) For political parties - Five pesos (P5.00) for every voter
currently registered in the constituency or constituencies
where it has official candidates.
Any provision of law to the contrary notwithstanding, any
contribution in cash or in kind to any candidate or political
party or coalition of parties for campaign purposes, duly
reported to the Commission, shall not be subject to the
payment of any gift tax.119chanrobleslaw
Sections 100, 101, and 103 of the OEC are not repealed by
R.A. No. 7166.1 These provisions, which are merely amended
insofar as the allowable amount is concerned, read:
SECTION 100. Limitations upon expenses of candidates. –
No candidate shall spend for his election campaign an
aggregate amount exceeding one peso and fifty centavos for
every voter currently registered in the constituency where he
filed his candidacy: Provided, That the expenses herein
referred to shall include those incurred or caused to be
incurred by the candidate, whether in cash or in kind,
including the use, rental or hire of land, water or aircraft,
equipment, facilities, apparatus and paraphernalia used in the
campaign: Provided, further, That where the land, water or
aircraft, equipment, facilities, apparatus and paraphernalia
used is owned by the candidate, his contributor or supporter,
the Commission is hereby empowered to assess the amount
commensurate with the expenses for the use thereof, based on
the prevailing rates in the locality and shall be included in the
total expenses incurred by the candidate.
SECTION 101. Limitations upon expenses of political parties.
– A duly accredited political party may spend for the election
of its candidates in the constituency or constituencies where it
has official candidates an aggregate amount not exceeding the
equivalent of one peso and fifty centavos for every voter
currently registered therein. Expenses incurred by branches,
chapters, or committees of such political party shall be
included in the computation of the total expenditures of the
political party.
Expenses incurred by other political parties shall be
considered as expenses of their respective individual
candidates and subject to limitation under Section 100 of this
Code.
SECTION 103. Persons authorized to incur election
expenditures. – No person, except the candidate, the treasurer
of a political party or any person authorized by such candidate
or treasurer, shall make any expenditure in support of or in
opposition to any candidate or political party. Expenditures
duly authorized by the candidate or the treasurer of the party
shall be considered as expenditures of such candidate or
political party.
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
The authority to incur expenditures shall be in writing, copy of
which shall be furnished the Commission signed by the
candidate or the treasurer of the party and showing the
expenditures so authorized, and shall state the full name and
exact address of the person so designated.
The focal query is: How shall We interpret “the expenses
herein referred to shall include those incurred or caused to be
incurred by the candidate” and “except the candidate, the
treasurer of a political party or any person authorized by such
candidate or treasurer” found in Sections 100 and 103,
respectively, of the OEC? Do these provisions exclude from
the allowable election expenditures the contributions of third
parties made with the consent of the candidate? The Court
holds not.
 When the intent of the law is not apparent as worded,
or when the application of the law would lead to
absurdity, impossibility or injustice, extrinsic aids of
statutory construction may be resorted
 Looking back, it could be found that Sections 100,
101, and 103 of the OEC are substantially lifted from
P.D. No. 1296,123 as amended. Sections 51, 52 and
54 of which specifically provide:
Section 51. Limitations upon expenses of candidates. No
candidate shall spend for his election campaign an amount
more than the salary or the equivalent of the total emoluments
for one year attached to the office for which he is a candidate:
Provided, That the expenses herein referred to shall include
those incurred by the candidate, his contributors and
supporters, whether in cash or in kind, including the use, rental
or hire of land, water or air craft, equipment, facilities,
apparatus and paraphernalia used in the campaign: Provided,
further, That, where the land, water or air craft, equipment,
facilities, apparatus and paraphernalia used is owned by the
candidate, his contributor or supporter, the Commission is
hereby empowered to assess the amount commensurate with
the expenses for the use thereof, based on the prevailing rates
in the locality and shall be included in the total expenses
incurred by the candidate.
In the case of candidates for the interim Batasang Pambansa,
they shall not spend more than sixty thousand pesos for their
election campaign.
Section 52. Limitation upon expenses of political parties,
groups or aggrupations. A political party, group or
aggrupation may not spend for the election of its candidates in
the constituency or constituencies where it has official
candidates an aggregate amount more than the equivalent of
fifty centavos for every voter currently registered therein:
Provided, That expenses incurred by such political party,
group or aggrupation not duly registered with the Commission
and/or not presenting or supporting a complete list of
candidates shall be considered as expenses of its candidates
and subject to the limitation under Section 51 of this Code.
Expenses incurred by branches, chapters or committees of a
political party, group or aggrupation shall be included in the
computation of the total expenditures of the political party,
group or aggrupation. (Emphasis supplied)
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Section 54. Persons authorized to incur election expenditures.
No person, except the candidate or any person authorized by
him or the treasurer of a political party, group or aggrupation,
shall make any expenditure in support of, or in opposition to
any candidate or political party, group or aggrupation.
Expenditures duly authorized by the candidate of the treasurer
of the party, group or aggrupation shall be considered as
expenditure of such candidate or political party, group or
aggrupation.
The authority to incur expenditures shall be in writing, copy of
which shall be furnished the Commission, signed by the
candidate or the treasurer of the party, group or aggrupation
and showing the expenditure so authorized, and shall state the
full name and exact address of the person so designated.
Prior to P.D. No. 1296, R.A. No. 6388 (otherwise known as
the “Election Code of 1971”) was enacted.124 Sections 41 and
42 of which are relevant, to quote:
Section 41. Limitation Upon Expenses of Candidates. – No
candidate shall spend for his election campaign more than the
total amount of salary for the full term attached to the office
for which he is a candidate.
Section 42. Limitation Upon Expenses of Political Parties and
Other Non-political Organizations. – No political party as
defined in this Code shall spend for the election of its
candidates an aggregate amount more than the equivalent of
one peso for every voter currently registered throughout the
country in case of a regular election, or in the constituency in
which the election shall be held in case of a special election
which is not held in conjunction with a regular election. Any
other organization not connected with any political party,
campaigning for or against a candidate, or for or against a
political party shall not spend more than a total amount of five
thousand pesos.
Much earlier, Section 12 (G) of R.A. No. 6132,125 which
implemented the resolution of both Houses of Congress
calling for a constitutional convention, explicitly stated:
Section 12. Regulations of Election Spending and Propaganda.
The following provisions shall govern election spending and
propaganda in the election provided for in this Act: x x x
(G) All candidates and all other persons making or receiving
expenditures, contributions or donations which in their totality
exceed fifty pesos, in order to further or oppose the candidacy
of any candidate, shall file a statement of all such expenditures
and contributions made or received on such dates and with
such details as the Commission on Elections shall prescribe by
rules. The total expenditures made by a candidate, or by any
other person with the knowledge and consent of the candidate,
shall not exceed thirty-two thousand pesos. (Emphasis
supplied)
 In tracing the legislative history of Sections 100, 101,
and 103 of the OEC, it can be said, therefore, that the
intent of our lawmakers has been consistent through
the years: to regulate not just the election expenses of
the candidate but also of his or her
contributor/supporter/donor as well as by including in
the aggregate limit of the former’s election expenses
those incurred by the latter.
 The phrase “those incurred or caused to be incurred
by the candidate” is sufficiently adequate to cover
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
2
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those expenses which are contributed or donated in
the candidate’s behalf. By virtue of the legal
requirement that a contribution or donation should
bear the written conformity of the candidate, a
contributor/supporter/donor certainly qualifies as
“any person authorized by such candidate or
treasurer.” (Where the law does not distinguish,
neither should We.) There should be no distinction
in the application of a law where none is indicated.
 The inclusion of the amount contributed by a donor
to the candidate’s allowable limit of election
expenses does not trample upon the free exercise of
the voters’ rights of speech and of expression under
Section 4, Article III of the Constitution.
 As a content-neutral regulation, the law’s concern is
not to curtail the message or content of the
advertisement promoting a particular candidate but to
ensure equality between and among aspirants
with “deep pockets” and those with less financial
resources. Any restriction on speech or expression is
only incidental and is no more than necessary to
achieve the substantial governmental interest of
promoting equality of opportunity in political
advertising. It bears a clear and reasonable
connection with the constitutional objectives set out
in Section 26, Article II, Section 4, Article IX-C, and
Section 1, Art. XIII of the Constitution.
 Indeed, to rule otherwise would practically result in
an unlimited expenditure for political advertising,
which skews the political process and subverts the
essence of a truly democratic form of government.

WHEREFORE, the Petition is DENIED. The May 21, 2014

Resolution of the COMELEC En Banc in SPA No. 13-306
(DC), which upheld the September 26, 2013 Resolution of the
COMELEC First Division, granting the petition for
disqualification filed by private respondent Edgar “Egay” S.
San Luis against petitioner Emilio Ramon “E.R.” P. Ejercito,
is hereby AFFIRMED.
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
DIOCESE OF BACOLOD VS COMELEC
FACTS:
 This case defines the extent that our people may
shape the debates during elections. It is significant
and of first impression. We are asked to decide
whether the (COMELEC) has the competence to
limit expressions made by the citizens — who are not
candidates — during elections.
 Before us is a special civil action for certiorari and
prohibition with application for preliminary
injunction and TRO under Rule 65 of the Rules of
Court seeking to nullify COMELEC’s Notice to
Remove Campaign Materials dated February 22,
2013 and letter issued on February 27, 2013.
 On February 21, 2013, petitioners posted two (2)
tarpaulins within a private compound housing the San
Sebastian Cathedral of Bacolod. Each tarpaulin was
approximately six feet (6') by ten feet (10') in size.
They were posted on the front walls of the cathedral
within public view.
o The first tarpaulin contains the message
"IBASURA RH Law" referring to the
Reproductive Health Law of 2012 or
Republic Act No. 10354.
o The second tarpaulin is the subject of the
present case. This tarpaulin contains the
heading "Conscience Vote" and lists
candidates as either "(Anti-RH) Team
Buhay" with a check mark, or "(Pro-RH)
Team Patay" with an "X" mark. The
electoral candidates were classified
according to their vote on the adoption of
RH Law. Those who voted for the passing
of the law were classified by petitioners as
comprising "Team Patay," while those who
voted against it form "Team Buhay"
 During oral arguments, respondents conceded that the
tarpaulin was neither sponsored nor paid for by any
candidate. Petitioners also conceded that the tarpaulin
contains names of candidates for the 2013 elections,
but not of politicians who helped in the passage of
the RH Law but were not candidates for that election.
 On February 22, 2013, respondent Atty. Mavil V.
Majarucon, in her capacity as Election Officer of
Bacolod City, issued a Notice to Remove Campaign
Materials addressed to petitioner Most Rev. Bishop
Vicente M. Navarra. The election officer ordered the
tarpaulin’s removal within three (3) days from receipt
for being oversized. COMELEC Resolution No. 9615
provides for the size requirement of two feet (2’) by
three feet (3’).9
 2/25/2013, petitioners replied requesting that (1)
petitioner Bishop be given a definite ruling by
COMELEC Law Department regarding the tarpaulin;
and (2) pending this opinion and the availment of
legal remedies, the tarpaulin be allowed to remain.
 2/27/2013, COMELEC Law Department issued a
letter ordering the immediate removal of the
tarpaulin; otherwise, it will be constrained to file an
election offense against petitioners. The letter of
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COMELEC Law Department was silent on the
remedies available to petitioners.
 On March 13, 2013, respondents filed their
comment17 arguing that (1) a petition for certiorari
and prohibition under Rule 65 of the Rules of Court
filed before this court is not the proper remedy to
question the notice and letter of respondents; and (2)
the tarpaulin is an election propaganda subject to
regulation by COMELEC pursuant to its mandate
under Article IX-C, Section 4 of the Constitution.
Hence, respondents claim that the issuances ordering
its removal for being oversized are valid and
constitutional.
PROCEDURAL ISSUES
I-A-This court’s jurisdiction over COMELEC cases
 Respondents ask that this petition be dismissed on the
ground that the notice and letter are not final orders,
decisions, rulings, or judgments of the COMELEC
En Banc issued in the exercise of its adjudicatory
powers, reviewable via Rule 64 of the Rules of Court.
 Rule 64 is not the exclusive remedy for all acts of the
COMELEC. Rule 65 is applicable especially to raise
objections relating to a grave abuse of discretion
resulting in the ouster of jurisdiction. As a special
civil action, there must also be a showing that there
be no plain, speedy, and adequate remedy in the
ordinary course of the law.
 Respondents contend that the assailed notice and
letter are not subject to review by this court, whose
power to review is "limited only to final decisions,
rulings and orders of the COMELEC En Banc
rendered in the exercise of its adjudicatory or quasi-
judicial power."
 Instead, respondents claim that the assailed notice
and letter are reviewable only by COMELEC itself
pursuant to Article IX-C, Section 2(3) of the
Constitution24 on COMELEC’s power to decide all
questions affecting elections.
 Respondents invoke the cases of Ambil, Jr. v.
COMELEC, Repol v. COMELEC, Soriano, Jr. v.
COMELEC, Blanco v. COMELEC, and Cayetano v.
COMELEC, to illustrate how judicial intervention is
limited to final decisions, orders, rulings and
judgments of the COMELEC En Banc.
THESE CASES ARE NOT APPLICABLE.
 In Ambil, Jr. v. COMELEC, the losing party in the
gubernatorial race of Eastern Samar filed the election
protest. At issue was the validity of the promulgation
of a COMELEC Division resolution. No motion for
reconsideration was filed to raise this issue before the
COMELEC En Banc. This court declared that it did
not have jurisdiction
 However, in Repol v. COMELEC, this court
provided exceptions to this general rule. Repol was
another election protest case, involving the mayoralty
elections in Pagsanghan, Samar. This time, the case
was brought to this court because the COMELEC
First Division issued a status quo ante order against
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
the RTC executing its decision pending appeal. This
court’s ponencia discussed the general rule
enunciated in Ambil, Jr. that it cannot take
jurisdiction to review interlocutory orders of a
COMELEC Division. However, consistent with
ABS-CBN Broadcasting Corporation v.
COMELEC, it clarified the exception:
o Procedural requirement [of filing a motion
for reconsideration] may be glossed over to
prevent miscarriage of justice, when the
issue involves the principle of social justice
or the protection of labor, when the decision
or resolution sought to be set aside is a
nullity, or when the need for relief is
extremely urgent and certiorari is the only
adequate and speedy remedy available.
 In Soriano, Jr. v. COMELEC. This case was also an
election protest case involving candidates for the city
council of Muntinlupa City. Petitioners in Soriano,
Jr.filed before this court a petition for certiorari
against an interlocutory order of the COMELEC First
Division. While the petition was pending in this
court, the COMELEC First Division dismissed the
main election protest case. Exception applied.
 Blanco v. COMELEC was a disqualification case of
one of the mayoralty candidates of Meycauayan,
Bulacan. The COMELEC Second Division ruled that
petitioner could not qualify for the 2007 elections due
to the findings in an administrative case that he
engaged in vote buying in the 1995 elections. No MR
was filed before the COMELEC En Banc. Exception
applied: The assailed resolution was a nullity.
 In Cayetano v. COMELEC, a recent election protest
case involving the mayoralty candidates of Taguig
City. Petitioner assailed a resolution of the
COMELEC denying her MR to dismiss the election
protest petition for lack of form and substance. Court
held exceptions did not apply.
Ambil, Jr., Repol, Soriano, Jr., Blanco, and Cayetano cited by
respondents do not operate as precedents to oust this court
from taking jurisdiction over this case. All these cases cited
involve election protests or disqualification cases filed by the
losing candidate against the winning candidate.
o In the present case, petitioners are not candidates
seeking for public office. Their petition is filed to
assert their fundamental right to expression.
o All these cases cited by respondents pertained to
COMELEC’s exercise of its adjudicatory or quasi-
judicial power. This case pertains to acts of
COMELEC in the implementation of its regulatory
powers. When it issued the notice and letter, the
COMELEC was allegedly enforcing election laws.
I.B-Rule 65, grave abuse of discretion, and limitations on
political speech
The main subject of this case is an alleged constitutional
violation: the infringement on speech and the "chilling effect"
caused by respondent COMELEC’s notice and letter.
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o Petitioners said that notice and letter infringe on their
fundamental right to freedom of expression and
violate the principle of separation of church and state
and, thus, are unconstitutional.
The zeal with which we protect political speech does not
depend on our evaluation of the cogency of the message NOR
on the motives of COMELEC. We evaluate restrictions on
freedom of expression from their effects. We protect both
speech and medium because the quality of this freedom in
practice will define the quality of deliberation in our
democratic society.
o COMELEC’s notice and letter affect preferred
speech. It could result in a "chilling effect" that
would affect other citizens who want their voices
heard on issues during the elections. Other citizens
who wish to express their views regarding the
election and other related issues may choose not to,
for fear of reprisal or sanction by the COMELEC.
Direct resort to this court is allowed to avoid such
proscribed conditions. Rule 65 is also the procedural
platform for raising grave abuse of discretion.
Both parties point to constitutional provisions on jurisdiction.
o For petitioners, it referred to this court’s expanded
exercise of certiorari as provided by the Constitution
o Respondents relied on its constitutional mandate to
decide all questions affecting elections. Article IX-C,
Section 2(3) of the Constitution, provides:
COMELEC shall exercise the following powers and
functions: (3) Decide, except those involving the
right to vote, all questions affecting elections,
including determination of the number and location
of polling places, appointment of election officials
and inspectors, and registration of voters.
RESPONDENTS’ RELIANCE ON THIS PROVISION IS
MISPLACED.
o We are not confronted here with the question of
whether the COMELEC, in its exercise of
jurisdiction, gravely abused it.
o We are confronted with the question as to whether
the COMELEC had any jurisdiction at all with its
acts threatening imminent criminal action effectively
abridging meaningful political speech.
o The more relevant provision for jurisdiction in this
case is Article VIII, Section 5(1) of the Constitution.
This provision provides for this court’s original
jurisdiction over petitions for certiorari and
prohibition. This should be read alongside the
expanded jurisdiction of the court in Article VIII,
Section 1 of the Constitution.
I.C-Hierarchy of courts
o Respondents contend that petitioners’ failure to file
the proper suit with a lower court of concurrent
jurisdiction is sufficient ground for the dismissal of
their petition.
o petitioners cite Fortich v. Corona on this court’s
discretionary power to take cognizance of a petition
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
filed directly to it if warranted by "compelling
reasons, or [by] the nature and importance of the
issues raised. there are "exceptional and compelling
reasons to justify a direct resort [with] this Court.
o Exceptions to doctrine of hierarchy of courts is not an
iron-clad rule.
1. genuine issues of constitutionality that must
be addressed at the most immediate time. the
assailed issuances of respondents prejudice
not only petitioners’ right to freedom of
expression in the present case, but also of
others in future similar cases.
2. the issues involved are of transcendental
importance. there is a clear threat to the
paramount right of freedom of speech and
freedom of expression which warrants
invocation of relief from this court. The
principles laid down in this decision will
likely influence the discourse of freedom of
speech in the future, especially in the
context of elections. The right to suffrage
not only includes the right to vote for one’s
chosen candidate, but also the right to
vocalize that choice to the public in general,
in the hope of influencing their votes. It may
be said that in an election year, the right to
vote necessarily includes the right to free
speech and expression.
3. cases of first impression warrant a direct
resort to this court. The case involves the
issue of whether the right of suffrage
includes the right of freedom of expression.
4. constitutional issues raised are better
decided by this court
5. time element presented in this case cannot
be ignored. This case was filed during the
2013 election period. Although the elections
have already been concluded, future cases
may be filed that necessitate urgency in its
resolution.
6. filed petition reviews the act of a
constitutional organ. COMELEC is a
constitutional body. In this case, if
petitioners sought to annul the actions of
COMELEC through pursuing remedies with
the lower courts, any ruling on their part
would not have been binding for other
citizens whom respondents may place in the
same situation. a ruling by this court would
be in the best interest of respondents, in
order that their actions may be guided
accordingly in the future.
7. no other plain, speedy, and adequate remedy
in the ordinary course of law that could free
them from the injurious effects of
respondents’ acts in violation of their right
to freedom of expression
8. petition includes questions that are "dictated
by public welfare and the advancement of
public policy, or demanded by the broader
interest of justice, or the orders complained
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of were found to be patent nullities, or the
appeal was considered as clearly an
inappropriate remedy."
I.DThe concept of a political question
o the determination of whether an issue involves a truly
political and non-justiciable question lies in the
answer to the question of whether there are
constitutionally imposed limits on powers or
functions conferred upon political bodies. If there are,
then our courts are duty-bound to examine whether
the branch or instrumentality of the government
properly acted within such limits.
I.E Exhaustion of administrative remedies
o The argument on exhaustion of administrative
remedies is not proper in this case.
o Despite the alleged non-exhaustion of administrative
remedies, it is clear that the controversy is already
ripe for adjudication.
o COMELEC’s letter threatening the filing of the
election offense against petitioners is already an
actionable infringement of this right. The impending
threat of criminal litigation is enough to curtail
petitioners’ speech. exhaustion of their administrative
remedies as COMELEC suggested in their pleadings
prolongs the violation of their freedom of speech.
o prior exhaustion of administrative remedies may be
dispensed with and judicial action may be validly
resorted to immediately: (a) when there is a violation
of due process; (b) when the issue involved is purely
a legal question; (c) when the administrative action is
patently illegal amounting to lack or excess of
jurisdiction; (d) when there is estoppel on the part
ofthe administrative agency concerned; (e) when
there is irreparable injury; (f) when the respondent is
a department secretary whose acts as analter ego of
the President bear the implied and assumed approval
of the latter; (g) when to require exhaustion of
administrative remedies would be unreasonable; (h)
when it would amount to a nullification of a claim; (i)
when the subject matter is a private land in land case
proceedings; (j) whenthe rule does not provide a
plain, speedy and adequate remedy; or (k) when there
are circumstances indicating the urgency of judicial
intervention.
SUBSTANTIVE ISSUES
II.A COMELEC had no legal basis to regulate expressions
made by private citizens
Petitioners are not candidates. Neither do they belong to any
political party. COMELEC does not have the authority to
regulate the enjoyment of the preferred right to freedom of
expression exercised by a non-candidate in this case.
II.A.1
First, respondents cite Article IX-C, Section 4 of the
Constitution, which provides: Section 4. The Commission
may,during the election period, supervise or regulate the
enjoyment or utilization of all franchises or permits for the
operation of transportation and other public utilities, media of
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
communication or information, all grants, special privileges,
or concessions granted by the Government or any subdivision,
agency, or instrumentality thereof, including any government-
owned or controlled corporation or its subsidiary. Such
supervision or regulation shall aim to ensure equal
opportunity, time, and space, and the right to reply, including
reasonable, equal rates therefor, for public information
campaigns and forums among candidates in connection with
the objective of holding free, orderly, honest, peaceful, and
credible elections.114 (Emphasis supplied)
o Sanidad v. COMELEC involved the rules
promulgated by COMELEC during the plebiscite for
the creation of the Cordillera Autonomous Region.
Columnist Pablito V. Sanidad questioned the
provision prohibiting journalists from covering
plebiscite issues on the day before and on plebiscite
day. This court found that "[m]edia practitioners
exercising their freedom of expression during
plebiscite periods are neither the franchise holders
nor the candidates"120 thus, their right to expression
during this period may not be regulated by
COMELEC.
o Similar to the media, petitioners in the case at bar are
neither franchise holders nor candidates.
II.A.2 Respondents likewise cite Article IX-C, Section 2(7) of
the Constitution as follows: Sec. 2. The Commission on
Elections shall exercise the following powers and functions:
(7) Recommend to the Congress effective measures to
minimize election spending, including limitation of places
where propaganda materials shall be posted, and to prevent
and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates. (Emphasis supplied)
Based on the enumeration made on acts that may be penalized,
it will be inferred that this provision only affects candidates.
Petitioners assail the "Notice to Remove Campaign Materials"
issued by COMELEC. This was followed by the assailed letter
regarding the "election propaganda material posted on the
church vicinity promoting for or against the candidates and
party-list groups.
Section 9 of the Fair Election Act on the posting of campaign
materials only mentions "parties" and "candidates": Sec. 9.
The COMELEC may authorize political parties and party-list
groups to erect common poster areas for their candidates in
not more than ten (10) public places such as plazas, markets,
barangay centers and the like, wherein candidates can post,
display or exhibit election propaganda: Provided, That the size
ofthe poster areas shall not exceed twelve (12) by sixteen (16)
feet or its equivalent. Independent candidates with no political
parties may likewise be authorized to erect common poster
areas in not more than ten (10) public places, the size of which
shall not exceed four (4) by six (6) feet or its equivalent.
Candidates may post any lawful propaganda material in
private places with the consent of the owner thereof, and in
public places or property which shall be allocated equitably
and impartially among the candidates. (Emphasis supplied)
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Similarly, Section 17 of COMELEC Resolution No. 9615, the
rules and regulations implementing the Fair Election Act,
provides as follows:
SECTION 17. Posting of Campaign Materials. - Parties and
candidates may post any lawful campaign material in:
a. Authorized common poster areasin public places subject to
the requirements and/or limitations set forth in the next
following section; and
b. Private places provided it has the consent of the owner
thereof.
The posting of campaign materials in public places outside of
the designated common poster areas and those enumerated
under Section 7 (g) of these Rules and the like is prohibited.
Persons posting the same shall be liable together with the
candidates and other persons who caused the posting. It will
be presumed that the candidates and parties caused the posting
of campaign materials outside the common poster areas if they
do not remove the same within three (3) days from notice
which shall be issued by the Election Officer of the city or
municipality where the unlawful election propaganda are
posted or displayed.
Members of the PNP and other law enforcement agencies
called upon by the Election Officeror other officials of the
COMELEC shall apprehend the violators caught in the act,
and file the appropriate charges against them. (Emphasis
supplied)
o Respondents considered the tarpaulin as a campaign
material in their issuances. The above provisions
regulating the posting of campaign materials only
apply to candidates and political parties, and
petitioners are neither of the two.
Section 3 of Republic Act No. 9006on "Lawful Election
Propaganda" also states that these are "allowed for all
registered political parties, national, regional, sectoral parties
or organizations participating under the party-list elections and
for all bona fide candidates seeking national and local elective
positions subject to the limitation on authorized expenses of
candidates and political parties. . . ." Section 6 of COMELEC
Resolution No. 9615 provides for a similar wording.
o These provisions show that election propaganda
refers to matter done by or on behalf of and in
coordination with candidates and political parties.
Some level of coordination with the candidates and
political parties for whom the election propaganda
are released would ensure that these candidates and
political parties maintain within the authorized
expenses limitation.
o The tarpaulin was not paid for by any candidate or
political party. There was no allegation that
petitioners coordinated with any of the persons
named in the tarpaulin regarding its posting. On the
other hand, petitioners posted the tarpaulin as part of
their advocacy against the RH Law.
o Respondents also cite National Press Club v.
COMELEC in arguing that its regulatory power
under the Constitution, to some extent, set a limit on
the right to free speech during election period.
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
o National Press Club involved the prohibition on the
sale and donation of space and time for political
advertisements, limiting political advertisements to
COMELEC-designated space and time. This case
was brought by representatives of mass media and
two candidates for office in the 1992 elections who
argued that the prohibition on the sale and donation
of space and time for political advertisements is
tantamount to censorship, which necessarily infringes
on the freedom of speech of the candidates.
o This court upheld the constitutionality of the
COMELEC prohibition in National Press Club.
However, this case does not apply as most of the
petitioners were electoral candidates, unlike
petitioners in the instant case.
o Moreover, the subject matter of National Press
Club, Section 11(b) of Republic Act No. 6646,
only refers to a particular kind of media such as
newspapers, radio broadcasting, or television.
Justice Feliciano emphasized that the provision
did not infringe upon the right of reporters or
broadcasters to air their commentaries and
opinions regarding the candidates, their
qualifications, and program for government.
Compared to Sanidad wherein the columnists
lost their ability to give their commentary on
the issues involving the plebiscite, National
Press Club does not involve the same
infringement.
o In the case at bar, petitioners lost their ability to give a
commentary on the candidates for the 2013 national
elections because of the COMELEC notice and letter.
It was not merely regulation on the campaigns of
candidates vying for public office. Thus, National
Press Clubdoes not apply to this case.
o Finally, Section 79 of OEC, defines an"election
campaign" The focus of the definition is that the act
must be "designed to promote the election or defeat of
a particular candidate or candidates to a public office."
In this case, the tarpaulin contains speech on a matter
of public concern, that is, a statement of either
appreciation or criticism on votes made in the passing
of the RH law. Thus, petitioners invoke their right to
freedom of expression.
II.B.1 The violation of the constitutional right to freedom
of speech and expression
Fundamental to the consideration of this issue is Article III,
Section 4 of the Constitution: Section 4. No law shall be
passed abridging the freedom of speech, of expression, or of
the press, or the right of the people peaceably to assemble and
petition the government for redress of grievances.
o No law. While it is true that the present petition
assails not a law but an opinion by the COMELEC
Law Department, this court has applied Article III,
Section 4 of the Constitution even to governmental
acts.
o In Primicias v. Fugoso, respondent Mayor applied by
analogy Section 1119 of the Revised Ordinances of
1927 of Manila for the public meeting and assembly
organized by petitioner Primicias. Section 1119
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requires a Mayor’s permit for the use of streets and
public places for purposes such as athletic games,
sports, or celebration of national holidays.What was
questioned was not a law but the Mayor’s refusal to
issue a permit for the holding of petitioner’s public
meeting.
o In ABS-CBN v. COMELEC, what was assailed was
not a law but COMELEC En Banc Resolution No.
98-1419 where the COMELEC resolved to approve
the issuance of a restraining order to stop ABS-CBN
from conducting exit surveys. The right to freedom of
expression was UPHELD.
o Our Constitution has also explicitly included the
freedom of expression, separate and in addition to the
freedom of speech and of the press provided in the
US Constitution. The word "expression" was added
in the 1987 Constitution by Commissioner Brocka for
having a wider scope
II.B.2
o Communication is an essential outcome of protected
speech. Speech is not limited to vocal
communication. Conduct, too. The right to freedom
of expression, thus, applies to the entire continuum of
speech from utterances made to conduct enacted, and
even to inaction itself as a symbolic manner of
communication.
o In Ebralinag v. The Division Superintendent of
Schools of Cebu, Justice Cruz discussed how the
salute is a symbolic manner of communication and a
valid form of expression.He adds that freedom of
speech includes even the right to be silent
o Even before freedom "of expression" was included in
Article III, Section 4 of the present Constitution, this
court has applied its precedent version to expressions
other than verbal utterances. In the 1985 case of
Gonzalez v. Chairman Katigbak, petitioners objected
to the classification of the motion picture "Kapit sa
Patalim" as "For Adults Only." They contend that the
classification "is without legal and factual basis and
is exercised as impermissible restraint of artistic
expression." This court recognized that "[m]otion
pictures are important both as a medium for the
communication of ideas and the expression of the
artistic impulse." It adds that "every writer,actor, or
producer, no matter what medium of expression he
may use, should be freed from the censor." This court
found that "[the Board’s] perception of what
constitutes obscenity appears to be unduly
restrictive." However, the petition was dismissed
solely on the ground that there were not enough votes
for a ruling of grave abuse of discretion in the
classification made by the Board.
II.B.3 Size does matter
It is easy to discern why size matters.
o First, it enhances efficiency in communication. A
larger tarpaulin allows larger fonts which make it
easier to view its messages from greater distances.
Furthermore, a larger tarpaulin makes it easier for
passengers inside moving vehicles to read its content.
Compared with the pedestrians, the passengers inside
moving vehicles have lesser time to view the content
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
of a tarpaulin. The larger the fonts and images, the
greater the probability that it will catch their attention
and, thus, the greater the possibility that they will
understand its message.
o Second, the size of the tarpaulin may underscore the
importance of the message to the reader. From an
ordinary person’s perspective, those who post their
messages in larger fonts care more about their
message than those who carry their messages in
smaller media. The perceived importance given by
the speakers, in this case petitioners, to their cause is
also part of the message. The effectivity of
communication sometimes relies on the emphasis put
by the speakers and onthe credibility of the speakers
themselves. Certainly, larger segments of the public
may tend to be more convinced of the point made by
authoritative figures when they make the effort to
emphasize their messages.
o Third, larger spaces allow for more messages. Larger
spaces, therefore, may translate to more opportunities
to amplify, explain, and argue points which the
speakers might want to communicate. Rather than
simply placing the names and images of political
candidates and an expression of support, larger
spaces can allow for brief but memorable
presentations of the candidates’ platforms for
governance. Larger spaces allow for more precise
inceptions of ideas, catalyze reactions to advocacies,
and contribute more to a more educated and reasoned
electorate. A more educated electorate will increase
the possibilities of both good governance and
accountability in our government.
These points become more salient when it is the electorate, not
the candidates or the political parties, that speaks. Too often,
the terms of public discussion during elections are framed and
kept hostage by brief and catchy but meaningless sound bites
extolling the character of the candidate. Worse, elections
sideline political arguments and privilege the endorsement by
celebrities. Rather than provide obstacles to their speech,
government should in fact encourage it. Between the
candidates and the electorate, the latter have the better
incentive to demand discussion of the more important issues.
Between the candidates and the electorate, the former have
better incentives to avoid difficult political standpoints and
instead focus on appearances and empty promises.
Large tarpaulins, therefore, are not analogous to time and
place.158 They are fundamentally part of expression protected
under Article III, Section 4 of the Constitution.
II.B.4 There are several theories and schools of thought
that strengthen the need to protect the basic right to
freedom of expression.
First, this relates to the right ofthe people to participate in
public affairs, including the right to criticize government
actions.
Proponents of the political theory on "deliberative democracy"
submit that "substantial, open, [and] ethical dialogue isa
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critical, and indeed defining, feature of a good polity."159
This theory may be considered broad, but it definitely
"includes [a] collective decision making with the participation
of all who will beaffected by the decision."160 It anchors on
the principle that the cornerstone of every democracy is that
sovereignty resides in the people.161 To ensure order in
running the state’s affairs, sovereign powers were delegated
and individuals would be elected or nominated in key
government positions to represent the people. On this note, the
theory on deliberative democracy may evolve to the right of
the people to make government accountable. Necessarily, this
includes the right of the people to criticize acts made pursuant
to governmental functions.
Speech that promotes dialogue on publicaffairs, or airs out
grievances and political discontent, should thus be protected
and encouraged.
Borrowing the words of Justice Brandeis, "it is hazardous to
discourage thought, hope and imagination; that fear breeds
repression; that repression breeds hate; that hate menaces
stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and
proposed remedies."162
In this jurisdiction, this court held that "[t]he interest of
society and the maintenance of good government demand a
full discussion of public affairs."163 This court has, thus,
adopted the principle that "debate on public issues should be
uninhibited, robust,and wide open . . . [including even]
unpleasantly sharp attacks on government and public
officials."164
Second, free speech should be encouraged under the concept
of a market place of ideas. This theory was articulated by
Justice Holmes in that "the ultimate good desired is better
reached by [the] free trade in ideas:"165
When men have realized that time has upset many fighting
faiths, they may come to believe even more than they believe
the very foundations of their own conduct that the ultimate
good desired is better reached by free trade in ideas - that the
best test of truth is the power of the thought to get itself
accepted in the competition of the market, and that truth is the
only ground upon which their wishes safely can be carried
out.166
The way it works, the exposure to the ideas of others allows
one to "consider, test, and develop their own conclusions."167
A free, open, and dynamic market place of ideas is constantly
shaping new ones. This promotes both stability and change
where recurring points may crystallize and weak ones may
develop. Of course, free speech is more than the right to
approve existing political beliefs and economic arrangements
as it includes, "[t]o paraphrase Justice Holmes, [the] freedom
for the thought that we hate, no less than for the thought that
agrees with us."168 In fact, free speech may "best serve its
high purpose when it induces a condition of unrest, creates
dissatisfaction with conditions as they are, or even stirs people
to anger."169 It is in this context that we should guard against
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
any curtailment of the people’s right to participate in the free
trade of ideas.
Third, free speech involves self-expression that enhances
human dignity. This right is "a means of assuring individual
self-fulfillment,"170 among others. In Philippine Blooming
Mills Employees Organization v. Philippine Blooming Mills
Co., Inc,171 this court discussed as follows:
The rights of free expression, free assembly and petition, are
not only civil rights but also political rights essential to man's
enjoyment of his life, to his happiness and to his full and
complete fulfillment.Thru these freedoms the citizens can
participate not merely in the periodic establishment of the
government through their suffrage but also in the
administration of public affairs as well as in the discipline of
abusive public officers. The citizen is accorded these rights so
that he can appeal to the appropriate governmental officers or
agencies for redress and protection as well as for the
imposition of the lawful sanctions on erring public officers
and employees.172 (Emphasis supplied)
Fourth, expression is a marker for group identity. For one,
"[v]oluntary associations perform [an] important democratic
role [in providing] forums for the development of civil skills,
for deliberation, and for the formation of identity and
community spirit[,] [and] are largely immune from [any]
governmental interference."173 They also "provide a buffer
between individuals and the state - a free space for the
development of individual personality, distinct group identity,
and dissident ideas - and a potential source of opposition to the
state."174 Free speech must be protected as the vehicle to find
those who have similar and shared values and ideals, to join
together and forward common goals.
Fifth, the Bill of Rights, free speech included, is supposed to
"protect individuals and minorities against majoritarian abuses
perpetrated through [the] framework [of democratic
governance]."175 Federalist framers led by James Madison
were concerned about two potentially vulnerable groups: "the
citizenry at large - majorities - who might be tyrannized or
plundered by despotic federal officials"176 and the minorities
who may be oppressed by "dominant factions of the electorate
[that] capture [the] government for their own selfish
ends[.]"177 According to Madison, "[i]t is of great importance
in a republic not only to guard the society against the
oppression of its rulers, but to guard one part of the society
against the injustice of the other part."178 We should strive to
ensure that free speech is protected especially in light of any
potential oppression against those who find themselves in the
fringes on public issues.
Lastly, free speech must be protected under the safety valve
theory.179 This provides that "nonviolent manifestations of
dissent reduce the likelihood of violence[.]"180 "[A] dam
about to burst . . . resulting in the ‘banking up of a menacing
flood of sullen anger behind the walls of restriction’"181 has
been used to describe the effect of repressing nonviolent
outlets.182 In order to avoid this situation and prevent people
from resorting to violence, there is a need for peaceful
methods in making passionate dissent. This includes "free
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expression and political participation"183 in that they can
"vote for candidates who share their views, petition their
legislatures to [make or] change laws, . . . distribute literature
alerting other citizens of their concerns[,]"184 and conduct
peaceful rallies and other similar acts.185 Free speech must,
thus, be protected as a peaceful means of achieving one’s goal,
considering the possibility that repression of nonviolent
dissent may spill over to violent means just to drive a point.
II.B.5
Every citizen’s expression with political consequences enjoys
a high degree of protection. Respondents argue that the
tarpaulinis election propaganda, being petitioners’ way of
endorsing candidates who voted against the RH Law and
rejecting those who voted for it.186 As such, it is subject to
regulation by COMELEC under its constitutional mandate.187
Election propaganda is defined under Section 1(4) of
COMELEC Resolution No. 9615 as follows: SECTION 1.
Definitions . . .
....
4. The term "political advertisement" or "election propaganda"
refers to any matter broadcasted, published, printed, displayed
or exhibited, in any medium, which contain the name, image,
logo, brand, insignia, color motif, initials, and other symbol or
graphic representation that is capable of being associated with
a candidate or party, and is intended to draw the attention of
the public or a segment thereof to promote or oppose, directly
or indirectly, the election of the said candidate or candidates to
a public office. In broadcast media, political advertisements
may take the form of spots, appearances on TV shows and
radio programs, live or taped announcements, teasers, and
other forms of advertising messages or announcements used
by commercial advertisers. Political advertising includes
matters, not falling within the scope of personal opinion, that
appear on any Internet website, including, but not limited to,
social networks, blogging sites, and micro-blogging sites, in
return for consideration, or otherwise capable of pecuniary
estimation.
On the other hand, petitioners invoke their "constitutional
right to communicate their opinions, views and beliefs about
issues and candidates."188 They argue that the tarpaulin was
their statement of approval and appreciation of the named
public officials’ act of voting against the RH Law, and their
criticism toward those who voted in its favor.189 It was "part
of their advocacy campaign against the RH Law,"190 which
was not paid for by any candidate or political party.191 Thus,
"the questioned orders which . . . effectively restrain[ed] and
curtail[ed] [their] freedom of expression should be declared
unconstitutional and void."192
This court has held free speech and other intellectual freedoms
as "highly ranked in our scheme of constitutional values."193
These rights enjoy precedence and primacy.194 In Philippine
Blooming Mills, this court discussed the preferred position
occupied by freedom of expression:
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
Property and property rights can belost thru prescription; but
human rights are imprescriptible. If human rights are
extinguished by the passage of time, then the Bill of Rights is
a useless attempt to limit the power of government and ceases
to be an efficacious shield against the tyranny of officials, of
majorities, ofthe influential and powerful, and of oligarchs -
political, economic or otherwise.
In the hierarchy of civil liberties, the rights of free expression
and of assembly occupy a preferred position as they are
essential to the preservation and vitality of our civil and
political institutions; and such priority "gives these liberties
the sanctity and the sanction not permitting dubious
intrusions."195 (Citations omitted)
This primordial right calls for utmost respect, more so "when
what may be curtailed is the dissemination of information to
make more meaningful the equally vital right of suffrage."196
A similar idea appeared in our jurisprudence as early as 1969,
which was Justice Barredo’s concurring and dissenting
opinion in Gonzales v. COMELEC:197
I like to reiterate over and over, for it seems this is the
fundamental point others miss, that genuine democracy thrives
only where the power and right of the people toelect the men
to whom they would entrust the privilege to run the affairs of
the state exist. In the language of the declaration of principles
of our Constitution, "The Philippines is a republican state.
Sovereignty resides in the people and all government authority
emanates from them" (Section 1, Article II). Translating this
declaration into actuality, the Philippines is a republic because
and solely because the people in it can be governed only by
officials whom they themselves have placed in office by their
votes. And in it is on this cornerstone that I hold it tobe self-
evident that when the freedoms of speech, press and peaceful
assembly and redress of grievances are being exercised in
relation to suffrage or asa means to enjoy the inalienable right
of the qualified citizen to vote, they are absolute and timeless.
If our democracy and republicanism are to be worthwhile, the
conduct of public affairs by our officials must be allowed to
suffer incessant and unabating scrutiny, favorable or
unfavorable, everyday and at all times. Every holder of power
in our government must be ready to undergo exposure any
moment of the day or night, from January to December every
year, as it is only in this way that he can rightfully gain the
confidence of the people. I have no patience for those who
would regard public dissection of the establishment as an
attribute to be indulged by the people only at certain periods of
time. I consider the freedoms of speech, press and peaceful
assembly and redress of grievances, when exercised in the
name of suffrage, as the very means by which the right itself
to vote can only be properly enjoyed.It stands to reason
therefore, that suffrage itself would be next to useless if these
liberties cannot be untrammelled [sic] whether as to degree or
time.198 (Emphasis supplied)
Not all speech are treated the same. In Chavez v. Gonzales,
this court discussed that some types of speech may be subject
to regulation:
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Some types of speech may be subjected to some regulation by
the State under its pervasive police power, in order that it may
not be injurious to the equal right of others or those of the
community or society. The difference in treatment is expected
because the relevant interests of one type of speech, e.g.,
political speech, may vary from those of another, e.g., obscene
speech. Distinctionshave therefore been made in the treatment,
analysis, and evaluation ofthe permissible scope of restrictions
on various categories of speech. We have ruled, for example,
that in our jurisdiction slander or libel, lewd and obscene
speech, as well as "fighting words" are not entitled to
constitutional protection and may be penalized.199 (Citations
omitted)
We distinguish between politicaland commercial speech.
Political speech refers to speech "both intended and received
as a contribution to public deliberation about some issue,"200
"foster[ing] informed and civicminded deliberation."201 On
the other hand, commercial speech has been defined as speech
that does "no more than propose a commercial
transaction."202 The expression resulting from the content of
the tarpaulin is, however, definitely political speech. In Justice
Brion’s dissenting opinion, he discussed that "[t]he content of
the tarpaulin, as well as the timing of its posting, makes it
subject of the regulations in RA 9006 and Comelec Resolution
No. 9615."203 He adds that "[w]hile indeed the RH issue, by
itself,is not an electoralmatter, the slant that the petitioners
gave the issue converted the non-election issue into a live
election one hence, Team Buhay and Team Patay and the plea
to support one and oppose the other."204
While the tarpaulin may influence the success or failure of the
named candidates and political parties, this does not
necessarily mean it is election propaganda. The tarpaulin was
not paid for or posted "in return for consideration" by any
candidate, political party, or party-list group.
The second paragraph of Section 1(4) of COMELEC
Resolution No. 9615, or the rules and regulations
implementing Republic Act No. 9006 as an aid to interpret the
law insofar as the facts of this case requires, states:
4. The term "political advertisement" or "election propaganda"
refers to any matter broadcasted, published, printed, displayed
or exhibited, in any medium, which contain the name, image,
logo, brand, insignia, color motif, initials, and other symbol or
graphic representation that is capable of being associated with
a candidate or party, and is intended to draw the attention of
the public or a segment thereof to promote or oppose, directly
or indirectly, the election of the said candidate or candidates to
a public office. In broadcast media, political advertisements
may take the form of spots, appearances on TV shows and
radio programs, live or taped announcements, teasers, and
other forms of advertising messages or announcements used
by commercial advertisers. Political advertising includes
matters, not falling within the scope of personal opinion, that
appear on any Internet website, including, but not limited to,
social networks, blogging sites, and micro-blogging sites, in
return for consideration, or otherwise capable of pecuniary
estimation. (Emphasis supplied)
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
It is clear that this paragraph suggests that personal opinions
are not included, while sponsored messages are covered.
Thus, the last paragraph of Section 1(1) of COMELEC
Resolution No. 9615 states:
SECTION 1. Definitions - As used in this Resolution:
1. The term "election campaign" or "partisan political activity"
refers to an act designed to promote the election or defeat of a
particular candidate or candidates to a public office, and shall
include any of the following:
....
Personal opinions, views, and preferences for candidates,
contained in blogs shall not be considered acts of election
campaigning or partisan politicalactivity unless expressed by
government officials in the Executive Department, the
Legislative Department, the Judiciary, the Constitutional
Commissions, and members of the Civil Service.
In any event, this case does not refer to speech in cyberspace,
and its effects and parameters should be deemed narrowly
tailored only in relation to the facts and issues in this case. It
also appears that such wording in COMELEC Resolution No.
9615 does not similarly appear in Republic Act No. 9006, the
law it implements.
We should interpret in this manner because of the value of
political speech.
As early as 1918, in United States v. Bustos,205 this court
recognized the need for full discussion of public affairs. We
acknowledged that free speech includes the right to criticize
the conduct of public men:
The interest of society and the maintenance of good
government demand a full discussion of public affairs.
Complete liberty to comment on the conduct of public men is
a scalpel in the case of free speech. The sharp incision of its
probe relieves the abscesses of official dom. Men in public life
may suffer under a hostile and an unjust accusation; the
wound can be assuaged with the balm of a clear conscience. A
public officer must not be too thin-skinned with reference to
comment upon his official acts. Only thus can the intelligence
and dignity of the individual be exalted.206
Subsequent jurisprudence developed the right to petition the
government for redress of grievances, allowing for criticism,
save for some exceptions.207 In the 1951 case of Espuelas v.
People,208 this court noted every citizen’s privilege to
criticize his or her government, provided it is "specific and
therefore constructive, reasoned or tempered, and not a
contemptuous condemnation of the entire government set-
up."209
The 1927 case of People v. Titular210 involved an alleged
violation of the Election Law provision "penaliz[ing] the
anonymous criticism of a candidate by means of posters or
circulars."211 This court explained that it is the poster’s
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anonymous character that is being penalized.212 The ponente
adds that he would "dislike very muchto see this decision
made the vehicle for the suppression of public opinion."213
In 1983, Reyes v. Bagatsing214 discussed the importance of
allowing individuals to vent their views. According to this
court, "[i]ts value may lie in the fact that there may be
something worth hearing from the dissenter [and] [t]hat is to
ensurea true ferment of ideas."215
Allowing citizens to air grievances and speak constructive
criticisms against their government contributes to every
society’s goal for development. It puts forward matters that
may be changed for the better and ideas that may be
deliberated on to attain that purpose. Necessarily, it also
makes the government accountable for acts that violate
constitutionally protected rights.
In 1998, Osmeña v. COMELEC found Section 11(b) of
Republic Act No. 6646, which prohibits mass media from
selling print space and air time for campaign except to the
COMELEC, to be a democracy-enhancing measure.216 This
court mentioned how "discussion of public issues and debate
on the qualifications of candidates in an election are essential
to the proper functioning of the government established by our
Constitution."217
As pointed out by petitioners, "speech serves one of its
greatest public purposes in the context of elections when the
free exercise thereof informs the people what the issues are,
and who are supporting what issues."218 At the heart of
democracy is every advocate’s right to make known what the
people need to know,219 while the meaningful exercise of
one’s right of suffrage includes the right of every voter to
know what they need to know in order to make their choice.
Thus, in Adiong v. COMELEC,220 this court discussed the
importance of debate on public issues, and the freedom of
expression especially in relation to information that ensures
the meaningful exercise of the right of suffrage:
We have adopted the principle that debate on public issues
should be uninhibited, robust, and wide open and that it may
well include vehement, caustic and sometimes unpleasantly
sharp attacks on government and public officials. Too many
restrictions will deny to people the robust, uninhibited, and
wide open debate, the generating of interest essential if our
elections will truly be free, clean and honest.
We have also ruled that the preferred freedom of expression
calls all the more for the utmost respect when what may be
curtailed is the dissemination of information to make more
meaningful the equally vital right of suffrage.221 (Emphasis
supplied, citations omitted)
Speech with political consequences isat the core of the
freedom of expression and must be protected by this court.
Justice Brion pointed out that freedomof expression "is not the
god of rights to which all other rights and even government
protection of state interest must bow."222
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
The right to freedom of expression isindeed not absolute. Even
some forms of protected speech are still subjectto some
restrictions. The degree of restriction may depend on whether
the regulation is content-based or content-neutral.223 Content-
based regulations can either be based on the viewpoint of the
speaker or the subject of the expression.
II.B.6
Content-based regulation
COMELEC contends that the order for removal of the
tarpaulin is a content-neutral regulation. The order was made
simply because petitioners failed to comply with the
maximum size limitation for lawful election propaganda.224
On the other hand, petitioners argue that the present size
regulation is content-based as it applies only to political
speech and not to other forms of speech such as commercial
speech.225 "[A]ssuming arguendo that the size restriction
sought to be applied . . . is a mere time, place, and manner
regulation, it’s still unconstitutional for lack of a clear and
reasonable nexus with a constitutionally sanctioned
objective."226
The regulation may reasonably be considered as either
content-neutral or content-based.227 Regardless, the
disposition of this case will be the same. Generally, compared
with other forms of speech, the proposed speech is content-
based.
As pointed out by petitioners, the interpretation of COMELEC
contained in the questioned order applies only to posters and
tarpaulins that may affect the elections because they deliver
opinions that shape both their choices. It does not cover, for
instance, commercial speech.
Worse, COMELEC does not point to a definite view of what
kind of expression of non-candidates will be adjudged as
"election paraphernalia." There are no existing bright lines to
categorize speech as election-related and those that are not.
This is especially true when citizens will want to use their
resources to be able to raise public issues that should be
tackled by the candidates as what has happened in this case.
COMELEC’s discretion to limit speech in this case is
fundamentally unbridled.
Size limitations during elections hit ata core part of
expression. The content of the tarpaulin is not easily divorced
from the size of its medium.
Content-based regulation bears a heavy presumption of
invalidity, and this court has used the clear and present danger
rule as measure.228 Thus, in Chavez v. Gonzales:
A content-based regulation, however, bears a heavy
presumption of invalidity and is measured against the clear
and present danger rule. The latter will pass constitutional
muster only if justified by a compelling reason, and the
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restrictions imposedare neither overbroad nor vague.229
(Citations omitted)
Under this rule, "the evil consequences sought to be prevented
must be substantive, ‘extremely serious and the degree of
imminence extremely high.’"230 "Only when the challenged
act has overcome the clear and present danger rule will it pass
constitutional muster, with the government having the burden
of overcoming the presumed unconstitutionality."231
Even with the clear and present danger test, respondents failed
to justify the regulation. There is no compelling and
substantial state interest endangered by the posting of the
tarpaulinas to justify curtailment of the right of freedom of
expression. There is no reason for the state to minimize the
right of non-candidate petitioners to post the tarpaulin in their
private property. The size of the tarpaulin does not affect
anyone else’s constitutional rights.
Content-based restraint or censorship refers to restrictions
"based on the subject matter of the utterance or speech."232 In
contrast, content-neutral regulation includes controls merely
on the incidents of the speech such as time, place, or manner
of the speech.233
This court has attempted to define "content-neutral" restraints
starting with the 1948 case of Primicias v. Fugoso.234 The
ordinance in this case was construed to grant the Mayor
discretion only to determine the public places that may be
used for the procession ormeeting, but not the power to refuse
the issuance of a permit for such procession or meeting.235
This court explained that free speech and peaceful assembly
are "not absolute for it may be so regulated that it shall not
beinjurious to the equal enjoyment of others having equal
rights, nor injurious to the rights of the community or
society."236
The earlier case of Calalang v. Williams237 involved the
National Traffic Commission resolution that prohibited the
passing of animal-drawn vehicles along certain roads at
specific hours.238 This court similarly discussed police power
in that the assailed rules carry outthe legislative policy that
"aims to promote safe transit upon and avoid obstructions on
national roads, in the interest and convenience of the
public."239
As early as 1907, United States v. Apurado240 recognized that
"more or less disorder will mark the public assembly of the
people to protest against grievances whether real or imaginary,
because on such occasions feeling is always wrought to a high
pitch of excitement. . . ."241 It is with this backdrop that the
state is justified in imposing restrictions on incidental matters
as time, place, and manner of the speech.
In the landmark case of Reyes v. Bagatsing, this court
summarized the steps that permit applicants must follow
which include informing the licensing authority ahead of time
as regards the date, public place, and time of the assembly.242
This would afford the public official time to inform applicants
if there would be valid objections, provided that the clear and
present danger test is the standard used for his decision and the
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
applicants are given the opportunity to be heard.243 This
ruling was practically codified in Batas Pambansa No. 880,
otherwise known as the Public Assembly Act of 1985.
Subsequent jurisprudence have upheld Batas Pambansa No.
880 as a valid content-neutral regulation. In the 2006 case of
Bayan v. Ermita,244 this court discussed how Batas Pambansa
No. 880 does not prohibit assemblies but simply regulates
their time, place, and manner.245 In 2010, this court found in
Integrated Bar of the Philippines v. Atienza246 that
respondent Mayor Atienza committed grave abuse of
discretion when he modified the rally permit by changing the
venue from Mendiola Bridge to Plaza Miranda without first
affording petitioners the opportunity to be heard.247
We reiterate that the regulation involved at bar is content-
based. The tarpaulin content is not easily divorced from the
size of its medium.
II.B.7
Justice Carpio and Justice Perlas-Bernabe suggest that the
provisions imposing a size limit for tarpaulins are content-
neutral regulations as these "restrict the mannerby which
speech is relayed but not the content of what is conveyed."248
If we apply the test for content-neutral regulation, the
questioned acts of COMELEC will not pass the three
requirements for evaluating such restraints on freedom of
speech.249 "When the speech restraints take the form of a
content-neutral regulation, only a substantial governmental
interest is required for its validity,"250 and it is subject only to
the intermediate approach.251
This intermediate approach is based on the test that we have
prescribed in several cases.252 A content-neutral government
regulation is sufficiently justified:
[1] if it is within the constitutional power of the Government;
[2] if it furthers an important or substantial governmental
interest; [3] if the governmental interest is unrelated to the
suppression of free expression; and [4] if the incident
restriction on alleged [freedom of speech & expression] is no
greater than is essential to the furtherance of that interest.253
On the first requisite, it is not within the constitutional powers
of the COMELEC to regulate the tarpaulin. As discussed
earlier, this is protected speech by petitioners who are non-
candidates. On the second requirement, not only must the
governmental interest be important or substantial, it must also
be compelling as to justify the restrictions made.
Compelling governmental interest would include
constitutionally declared principles. We have held, for
example, that "the welfare of children and the State’s mandate
to protect and care for them, as parens patriae,254 constitute a
substantial and compelling government interest in regulating .
. . utterances in TV broadcast."255
Respondent invokes its constitutional mandate to ensure equal
opportunity for public information campaigns among
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candidates in connection with the holding of a free, orderly,
honest, peaceful, and credible election.256
Justice Brion in his dissenting opinion discussed that "[s]ize
limits to posters are necessary to ensure equality of public
information campaigns among candidates, as allowing posters
with different sizes gives candidates and their supporters the
incentive to post larger posters[,] [and] [t]his places candidates
with more money and/or with deep-pocket supporters at an
undue advantage against candidates with more humble
financial capabilities."257
First, Adiong v. COMELEC has held that this interest is "not
as important as the right of [a private citizen] to freely express
his choice and exercise his right of free speech."258 In any
case, faced with both rights to freedom of speech and equality,
a prudent course would be to "try to resolve the tension in a
way that protects the right of participation."259
Second, the pertinent election lawsrelated to private property
only require that the private property owner’s consent be
obtained when posting election propaganda in the
property.260 This is consistent with the fundamental right
against deprivation of property without due process of law.261
The present facts do not involve such posting of election
propaganda absent consent from the property owner. Thus,
this regulation does not apply in this case.
Respondents likewise cite the Constitution262 on their
authority to recommend effective measures to minimize
election spending. Specifically, Article IX-C, Section 2(7)
provides:
Sec. 2. The Commission on Elections shall exercise the
following powers and functions:
....
(7) Recommend to the Congress effective measures to
minimize election spending, including limitation of places
where propaganda materials shall be posted, and to prevent
and penalize all forms of election frauds, offenses,
malpractices, and nuisance candidates. (Emphasis supplied)
This does not qualify as a compelling and substantial
government interest to justify regulation of the preferred right
to freedom of expression.
The assailed issuances for the removal of the tarpaulin are
based on the two feet (2’) by three feet (3’) size limitation
under Section 6(c) of COMELEC Resolution No. 9615. This
resolution implements the Fair Election Act that provides for
the same size limitation.263
This court held in Adiong v. COMELEC that "[c]ompared to
the paramount interest of the State in guaranteeing freedom of
expression, any financial considerations behind the regulation
are of marginal significance."264 In fact, speech with political
consequences, as in this case, should be encouraged and not
curtailed. As petitioners pointed out, the size limitation will
not serve the objective of minimizing election spending
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
considering there is no limit on the number of tarpaulins that
may be posted.265
The third requisite is likewise lacking. We look not only at the
legislative intent or motive in imposing the restriction, but
more so at the effects of such restriction, if implemented. The
restriction must not be narrowly tailored to achieve the
purpose. It must be demonstrable. It must allow alternative
avenues for the actor to make speech.
In this case, the size regulation is not unrelated to the
suppression of speech. Limiting the maximum sizeof the
tarpaulin would render ineffective petitioners’ message and
violate their right to exercise freedom of expression.
The COMELEC’s act of requiring the removal of the tarpaulin
has the effect of dissuading expressions with political
consequences. These should be encouraged, more so when
exercised to make more meaningful the equally important
right to suffrage.
The restriction in the present case does not pass even the lower
test of intermediate scrutiny for content-neutral regulations.
The action of the COMELEC in thiscase is a strong deterrent
to further speech by the electorate. Given the stature of
petitioners and their message, there are indicators that this will
cause a "chilling effect" on robust discussion during elections.
The form of expression is just as important as the message
itself. In the words of Marshall McLuhan, "the medium is the
message."266 McLuhan’s colleague and mentor Harold Innis
has earlier asserted that "the materials on which words were
written down have often counted for more than the words
themselves."267
III
Freedom of expression and equality
III.A
The possibility of abuse
Of course, candidates and political parties do solicit the help
of private individuals for the endorsement of their electoral
campaigns.
On the one extreme, this can take illicit forms such as when
endorsement materials in the form of tarpaulins, posters, or
media advertisements are made ostensibly by "friends" but in
reality are really paid for by the candidate or political party.
This skirts the constitutional value that provides for equal
opportunities for all candidates.
However, as agreed by the parties during the oral arguments in
this case, this is not the situation that confronts us. In such
cases, it will simply be a matter for investigation and proof of
fraud on the part of the COMELEC.
The guarantee of freedom of expression to individuals without
any relationship to any political candidate should not be held
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hostage by the possibility of abuse by those seeking to be
elected. It is true that there can be underhanded, covert, or
illicit dealings so as to hide the candidate’s real levels of
expenditures. However, labelling all expressions of private
parties that tend to have an effect on the debate in the elections
as election paraphernalia would be too broad a remedy that
can stifle genuine speech like in this case. Instead, to address
this evil, better and more effective enforcement will be the
least restrictive means to the fundamental freedom.
On the other extreme, moved by the credentials and the
message of a candidate, others will spend their own resources
in order to lend support for the campaigns. This may be
without agreement between the speaker and the candidate or
his or her political party. In lieu of donating funds to the
campaign, they will instead use their resources directly in a
way that the candidate or political party would have doneso.
This may effectively skirt the constitutional and statutory
limits of campaign spending.
Again, this is not the situation in this case.
The message of petitioners in thiscase will certainly not be
what candidates and political parties will carry in their election
posters or media ads. The message of petitioner, taken as a
whole, is an advocacy of a social issue that it deeply believes.
Through rhetorical devices, it communicates the desire of
Diocese that the positions of those who run for a political
position on this social issue be determinative of how the
public will vote. It primarily advocates a stand on a social
issue; only secondarily — even almost incidentally — will
cause the election or non-election of a candidate.
The twin tarpaulins consist of satire of political parties. Satire
is a "literary form that employs such devices as sarcasm, irony
and ridicule to deride prevailing vices or follies,"268 and this
may target any individual or group in society, private and
government alike. It seeks to effectively communicate a
greater purpose, often used for "political and social
criticism"269 "because it tears down facades, deflates stuffed
shirts, and unmasks hypocrisy. . . . Nothing is more thoroughly
democratic than to have the high-and-mighty lampooned and
spoofed."270 Northrop Frye, wellknown in this literary field,
claimed that satire had two defining features: "one is wit or
humor founded on fantasy or a sense of the grotesque and
absurd, the other is an object of attack."271 Thus, satire
frequently uses exaggeration, analogy, and other rhetorical
devices.
The tarpaulins exaggerate. Surely, "Team Patay" does not
refer to a list of dead individuals nor could the Archbishop of
the Diocese of Bacolod have intended it to mean that the entire
plan of the candidates in his list was to cause death
intentionally. The tarpaulin caricatures political parties and
parodies the intention of those in the list. Furthermore, the list
of "Team Patay" is juxtaposed with the list of "Team Buhay"
that further emphasizes the theme of its author: Reproductive
health is an important marker for the church of petitioners to
endorse.
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
The messages in the tarpaulins are different from the usual
messages of candidates. Election paraphernalia from
candidates and political parties are more declarative and
descriptive and contain no sophisticated literary allusion to
any social objective. Thus, they usually simply exhort the
public to vote for a person with a brief description of the
attributes of the candidate. For example "Vote for [x], Sipag at
Tiyaga," "Vote for [y], Mr. Palengke," or "Vote for [z], Iba
kami sa Makati."
This court’s construction of the guarantee of freedom of
expression has always been wary of censorship or subsequent
punishment that entails evaluation of the speaker’s viewpoint
or the content of one’s speech. This is especially true when the
expression involved has political consequences. In this case, it
hopes to affect the type of deliberation that happens during
elections. A becoming humility on the part of any human
institution no matter how endowed with the secular ability to
decide legal controversies with finality entails that we are not
the keepers of all wisdom.
Humanity’s lack of omniscience, even acting collectively,
provides space for the weakest dissent. Tolerance has always
been a libertarian virtue whose version is embedded in our
Billof Rights. There are occasional heretics of yesterday that
have become our visionaries. Heterodoxies have always given
us pause. The unforgiving but insistent nuance that the
majority surely and comfortably disregards provides us with
the checks upon reality that may soon evolve into creative
solutions to grave social problems. This is the utilitarian
version. It could also be that it is just part of human necessity
to evolve through being able to express or communicate.
However, the Constitution we interpret is not a theoretical
document. It contains other provisions which, taken together
with the guarantee of free expression, enhances each other’s
value. Among these are the provisions that acknowledge the
idea of equality. In shaping doctrine construing these
constitutional values, this court needs to exercise
extraordinary prudence and produce narrowly tailored
guidance fit to the facts as given so as not to unwittingly cause
the undesired effect of diluting freedoms as exercised in
reality and, thus, render them meaningless.
III.B.
Speech and equality:
Some considerations We first establish that there are two
paradigms of free speech that separate at the point of giving
priority to equality vis-à-vis liberty.272
In an equality-based approach, "politically disadvantaged
speech prevails over regulation[,] but regulation promoting
political equality prevails over speech."273 This view allows
the government leeway to redistribute or equalize ‘speaking
power,’ such as protecting, even implicitly subsidizing,
unpopular or dissenting voices often systematically subdued
within society’s ideological ladder.274 This view
acknowledges that there are dominant political actors who,
through authority, power, resources, identity, or status, have
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capabilities that may drown out the messages of others. This is
especially true in a developing or emerging economy that is
part of the majoritarian world like ours.
The question of libertarian tolerance
This balance between equality and the ability to express so as
to find one’s authentic self or to participate in the self
determination of one’s communities is not new only to law. It
has always been a philosophical problematique.
In his seminal work, Repressive Tolerance, philosopher and
social theorist Herbert Marcuse recognized how
institutionalized inequality exists as a background limitation,
rendering freedoms exercised within such limitation as merely
"protect[ing] the already established machinery of
discrimination."275 In his view, any improvement "in the
normal course of events" within an unequal society, without
subversion, only strengthens existing interests of those in
power and control.276
In other words, abstract guarantees of fundamental rights like
freedom of expression may become meaningless if not taken
in a real context. This tendency to tackle rights in the abstract
compromises liberties. In his words:
Liberty is self-determination, autonomy—this is almost a
tautology, but a tautology which results from a whole series of
synthetic judgments. It stipulates the ability to determine one’s
own life: to be able to determine what to do and what not to
do, what to suffer and what not. But the subject of this
autonomy is never the contingent, private individual as that
which he actually is or happens to be; it is rather the individual
as a human being who is capable of being free with the others.
And the problem of making possible such a harmony between
every individual liberty and the other is not that of finding a
compromise between competitors, or between freedom and
law, between general and individual interest, common and
private welfare in an established society, but of creating the
society in which man is no longer enslaved by institutions
which vitiate self-determination from the beginning. In other
words, freedom is still to be created even for the freest of the
existing societies.277 (Emphasis in the original)
Marcuse suggests that the democratic argument — with all
opinions presented to and deliberated by the people —
"implies a necessary condition, namely, that the people must
be capable of deliberating and choosing on the basis of
knowledge, that they must have access to authentic
information, and that, on this basis, their evaluation must be
the result of autonomous thought."278 He submits that
"[d]ifferent opinions and ‘philosophies’ can no longer
compete peacefully for adherence and persuasion on rational
grounds: the ‘marketplace of ideas’ is organized and delimited
by those who determine the national and the individual
interest."279 A slant toward left manifests from his belief that
"there is a ‘natural right’ of resistance for oppressed and
overpowered minorities to use extralegal means if the legal
ones have proved to be inadequate."280 Marcuse, thus, stands
for an equality that breaks away and transcends from
established hierarchies, power structures, and indoctrinations.
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
The tolerance of libertarian society he refers to as "repressive
tolerance."
Legal scholars
The 20th century also bears witness to strong support from
legal scholars for "stringent protections of expressive
liberty,"281 especially by political egalitarians. Considerations
such as "expressive, deliberative, and informational
interests,"282 costs or the price of expression, and background
facts, when taken together, produce bases for a system of
stringent protections for expressive liberties.283
Many legal scholars discuss the interest and value of
expressive liberties. Justice Brandeis proposed that "public
discussion is a political duty."284 Cass Sustein placed
political speech on the upper tier of his twotier model for
freedom of expression, thus, warranting stringent
protection.285 He defined political speech as "both intended
and received as a contribution to public deliberation about
some issue."286
But this is usually related also tofair access to opportunities
for such liberties.287 Fair access to opportunity is suggested
to mean substantive equality and not mere formal
equalitysince "favorable conditions for realizing the
expressive interest will include some assurance of the
resources required for expression and some guarantee that
efforts to express views on matters of common concern will
not be drowned out by the speech of betterendowed
citizens."288 Justice Brandeis’ solution is to "remedy the
harms of speech with more speech."289 This view moves
away from playing down the danger as merely exaggerated,
toward "tak[ing] the costs seriously and embrac[ing]
expression as the preferred strategy for addressing them."290
However, in some cases, the idea of more speech may not be
enough. Professor Laurence Tribe observed the need for
context and "the specification of substantive values before
[equality] has full meaning."291 Professor Catherine A.
MacKinnon adds that "equality continues to be viewed in a
formal rather than a substantive sense."292 Thus, more speech
can only mean more speech from the few who are dominant
rather than those who are not.
Our jurisprudence
This court has tackled these issues.
Osmeña v. COMELEC affirmed National Press Club v.
COMELEC on the validity of Section 11(b) ofthe Electoral
Reforms Law of 1987.293 This section "prohibits mass media
from selling or giving free of charge print space or air time for
campaign or other political purposes, except to the
Commission on Elections."294 This court explained that this
provision only regulates the time and manner of advertising in
order to ensure media equality among candidates.295 This
court grounded this measure on constitutional provisions
mandating political equality:296 Article IX-C, Section 4
Section 4. The Commission may, during the election period,
supervise or regulate the enjoyment or utilization of all
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franchises or permits for the operation of transportation and
other public utilities, media of communication or information,
all grants, special privileges, or concessions granted by the
Government or any subdivision, agency, or instrumentality
thereof, including any government-owned or controlled
corporation or its subsidiary. Such supervision or regulation
shall aim to ensure equal opportunity, time, and space, and the
right to reply, including reasonable, equal rates therefor, for
public information campaigns and forums among candidates
in connection with the objective of holding free, orderly,
honest, peaceful, and credible elections. (Emphasis supplied)
Article XIII, Section 1
Section 1. The Congress shall give highest priorityto the
enactment of measures that protect and enhance the right of all
the people to human dignity, reducesocial, economic, and
political inequalities, and remove cultural inequities by
equitably diffusing wealth and political power for the common
good.
To this end, the State shall regulate the acquisition, ownership,
use, and disposition of property and its increments. (Emphasis
supplied)
Article II, Section 26
Section 26. The State shall guarantee equal access to
opportunities for public service, and prohibit political
dynasties as may be defined by law. (Emphasis supplied)
Thus, in these cases, we have acknowledged the Constitution’s
guarantee for more substantive expressive freedoms that take
equality of opportunities into consideration during elections.
The other view
However, there is also the other view. This is that
considerations of equality of opportunity or equality inthe
ability of citizens as speakers should not have a bearing in free
speech doctrine. Under this view, "members of the public are
trusted to make their own individual evaluations of speech,
and government is forbidden to intervene for paternalistic or
redistributive reasons . . . [thus,] ideas are best left to a freely
competitive ideological market."297 This is consistent with
the libertarian suspicion on the use of viewpoint as well as
content to evaluate the constitutional validity or invalidity of
speech.
The textual basis of this view is that the constitutional
provision uses negative rather than affirmative language. It
uses ‘speech’ as its subject and not ‘speakers’.298
Consequently, the Constitution protects free speech per se,
indifferent to the types, status, or associations of its
speakers.299 Pursuant to this, "government must leave
speakers and listeners in the private order to their own devices
in sorting out the relative influence of speech."300
Justice Romero’s dissenting opinion in Osmeña v. COMELEC
formulates this view that freedom of speech includes "not only
the right to express one’s views, but also other cognate rights
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
relevant to the free communication [of] ideas, not excluding
the right to be informed on matters of public concern."301 She
adds:
And since so many imponderables may affect the outcome of
elections — qualifications of voters and candidates, education,
means of transportation, health, public discussion, private
animosities, the weather, the threshold of a voter’s resistance
to pressure — the utmost ventilation of opinion of men and
issues, through assembly, association and organizations, both
by the candidate and the voter, becomes a sine qua non for
elections to truly reflect the will of the electorate.302
(Emphasis supplied)
Justice Romero’s dissenting opinion cited an American case, if
only to emphasize free speech primacy such that"courts, as a
rule are wary to impose greater restrictions as to any attempt
to curtail speeches with political content,"303 thus:
the concept that the government may restrict the speech of
some elements in our society in order to enhance the relative
voice of the others is wholly foreign to the First Amendment
which was designed to "secure the widest possible
dissemination of information from diverse and antagonistic
sources" and "to assure unfettered interchange of ideas for the
bringing about of political and social changes desired by the
people."304
This echoes Justice Oliver Wendell Holmes’ submission "that
the market place of ideas is still the best alternative to
censorship."305
Parenthetically and just to provide the whole detail of the
argument, the majority of the US Supreme Court in the
campaign expenditures case of Buckley v. Valeo "condemned
restrictions (even if content-neutral) on expressive liberty
imposed in the name of ‘enhanc[ing] the relative voice of
others’ and thereby ‘equaliz[ing] access to the political
arena."306 The majority did not use the equality-based
paradigm.
One flaw of campaign expenditurelimits is that "any limit
placed on the amount which a person can speak, which takes
out of his exclusive judgment the decision of when enough is
enough, deprives him of his free speech."307
Another flaw is how "[a]ny quantitative limitation on political
campaigning inherently constricts the sum of public
information and runs counter to our ‘profound national
commitment that debate on public issues should be
uninhibited, robust, and wide-open.’"308
In fact, "[c]onstraining those who have funds or have been
able to raise funds does not ease the plight of those without
funds in the first place . . . [and] even if one’s main concern
isslowing the increase in political costs, it may be more
effective torely on market forces toachieve that result than on
active legal intervention."309 According to Herbert
Alexander, "[t]o oppose limitations is not necessarily to argue
that the sky’s the limit [because in] any campaign there are
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saturation levels and a point where spending no longer pays
off in votes per dollar."310
III. C.
When private speech amounts
to election paraphernalia
The scope of the guarantee of free expression takes into
consideration the constitutional respect for human potentiality
and the effect of speech. It valorizes the ability of human
beings to express and their necessity to relate. On the other
hand, a complete guarantee must also take into consideration
the effects it will have in a deliberative democracy. Skewed
distribution of resources as well as the cultural hegemony of
the majority may have the effect of drowning out the speech
and the messages of those in the minority. In a sense, social
inequality does have its effect on the exercise and effect of the
guarantee of free speech. Those who have more will have
better access to media that reaches a wider audience than those
who have less. Those who espouse the more popular ideas will
have better reception than the subversive and the dissenters of
society.To be really heard and understood, the marginalized
view normally undergoes its own degree of struggle.
The traditional view has been to tolerate the viewpoint of the
speaker and the content of his or her expression. This view,
thus, restricts laws or regulation that allows public officials to
make judgments of the value of such viewpoint or message
content. This should still be the principal approach.
However, the requirements of the Constitution regarding
equality in opportunity must provide limits to some expression
during electoral campaigns.
Thus clearly, regulation of speech in the context of electoral
campaigns made by candidates or the members of their
political parties or their political parties may be regulated as to
time, place, and manner. This is the effect of our rulings in
Osmeña v. COMELEC and National Press Club v.
COMELEC.
Regulation of speech in the context of electoral campaigns
made by persons who are not candidates or who do not speak
as members of a political party which are, taken as a whole,
principally advocacies of a social issue that the public must
consider during elections is unconstitutional. Such regulation
is inconsistent with the guarantee of according the fullest
possible range of opinions coming from the electorate
including those that can catalyze candid, uninhibited, and
robust debate in the criteria for the choice of a candidate.
This does not mean that there cannot be a specie of speech by
a private citizen which will not amount toan election
paraphernalia to be validly regulated by law.
Regulation of election paraphernalia will still be
constitutionally valid if it reaches into speech of persons who
are not candidates or who do not speak as members of a
political party if they are not candidates, only if what is
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
regulated is declarative speech that, taken as a whole, has for
its principal object the endorsement of a candidate only. The
regulation (a) should be provided by law, (b) reasonable, (c)
narrowly tailored to meet the objective of enhancing the
opportunity of all candidates to be heard and considering the
primacy of the guarantee of free expression, and (d)
demonstrably the least restrictive means to achieve that object.
The regulation must only be with respect to the time, place,
and manner of the rendition of the message. In no situation
may the speech be prohibited or censored onthe basis of its
content. For this purpose, it will notmatter whether the speech
is made with or on private property.
This is not the situation, however, in this case for two reasons.
First, as discussed, the principal message in the twin tarpaulins
of petitioners consists of a social advocacy.
Second, as pointed out in the concurring opinion of Justice
Antonio Carpio, the present law — Section 3.3 of Republic
Act No. 9006 and Section 6(c) of COMELEC Resolution No.
9615 — if applied to this case, will not pass the test of
reasonability. A fixed size for election posters or tarpaulins
without any relation to the distance from the intended average
audience will be arbitrary. At certain distances, posters
measuring 2 by 3 feet could no longer be read by the general
public and, hence, would render speech meaningless. It will
amount to the abridgement of speech with political
consequences.
IV
Right to property
Other than the right to freedom of expression311 and the
meaningful exercise of the right to suffrage,312 the present
case also involves one’s right to property.313
Respondents argue that it is the right of the state to prevent the
circumvention of regulations relating to election propaganda
by applying such regulations to private individuals.314
Certainly, any provision or regulation can be circumvented.
But we are not confronted with this possibility. Respondents
agree that the tarpaulin in question belongs to petitioners.
Respondents have also agreed, during the oral arguments, that
petitioners were neither commissioned nor paid by any
candidate or political party to post the material on their walls.
Even though the tarpaulin is readily seen by the public, the
tarpaulin remains the private property of petitioners. Their
right to use their property is likewise protected by the
Constitution.
In Philippine Communications Satellite Corporation v.
Alcuaz:315
Any regulation, therefore, which operates as an effective
confiscation of private property or constitutes an arbitrary or
unreasonable infringement of property rights is void, because
it is repugnant to the constitutional guaranties of due process
and equal protection of the laws.316 (Citation omitted)
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This court in Adiong held that a restriction that regulates
where decals and stickers should be posted is "so broad that it
encompasses even the citizen’s private property."317
Consequently, it violates Article III, Section 1 of the
Constitution which provides thatno person shall be deprived of
his property without due process of law. This court explained:
Property is more than the mere thing which a person owns, it
includes the right to acquire, use, and dispose of it; and the
Constitution, in the 14th Amendment, protects these essential
attributes.
Property is more than the mere thing which a person owns. It
is elementary that it includes the right to acquire, use, and
dispose of it. The Constitution protects these essential
attributes of property. Holden v. Hardy, 169 U.S. 366, 391, 41
L. ed. 780, 790, 18 Sup. Ct. Rep. 383. Property consists of the
free use, enjoyment, and disposal of a person’s acquisitions
without control or diminution save by the law of the land. 1
Cooley’s Bl. Com. 127. (Buchanan v. Warley 245 US 60
[1917])318
This court ruled that the regulation in Adiong violates private
property rights:
The right to property may be subject to a greater degree of
regulation but when this right is joined by a "liberty" interest,
the burden of justification on the part of the Government must
be exceptionally convincing and irrefutable. The burden is not
met in this case.
Section 11 of Rep. Act 6646 is so encompassing and invasive
that it prohibits the posting or display of election propaganda
in any place, whether public or private, except inthe common
poster areas sanctioned by COMELEC. This means that a
private person cannot post his own crudely prepared personal
poster on his own front dooror on a post in his yard. While the
COMELEC will certainly never require the absurd, there are
no limits to what overzealous and partisan police officers,
armed with a copy of the statute or regulation, may do.319
Respondents ordered petitioners, who are private citizens, to
remove the tarpaulin from their own property. The absurdity
of the situation is in itself an indication of the
unconstitutionality of COMELEC’s interpretation of its
powers.
Freedom of expression can be intimately related with the right
to property. There may be no expression when there is no
place where the expression may be made. COMELEC’s
infringement upon petitioners’ property rights as in the present
case also reaches out to infringement on their fundamental
right to speech.
Respondents have not demonstrated thatthe present state
interest they seek to promote justifies the intrusion into
petitioners’ property rights. Election laws and regulations
must be reasonable. It must also acknowledge a private
individual’s right to exercise property rights. Otherwise, the
due process clause will be violated.
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
COMELEC Resolution No. 9615 and the Fair Election Act
intend to prevent the posting of election propaganda in private
property without the consent of the owners of such private
property. COMELEC has incorrectly implemented these
regulations. Consistent with our ruling in Adiong, we find that
the act of respondents in seeking to restrain petitioners from
posting the tarpaulin in their own private property is an
impermissible encroachments on the right to property.
V balance between the assertion of a religious practice and the
Tarpaulin and its message are not religious speech
We proceed to the last issues pertaining to whether the
COMELEC in issuing the questioned notice and letter violated
the right of petitioners to the free exercise of their religion.
At the outset, the Constitution mandates the separation of
church and state.320 This takes many forms. Article III,
Section 5 of the Constitution, for instance provides:
Section 5. No law shall be made respecting an establishment
of religion, or prohibiting the free exercise thereof. The free
exercise and enjoyment of religious profession and worship,
without discrimination or preference, shall forever be allowed.
Noreligious test shall be required for the exercise of civil or
political rights.
There are two aspects of this provision.321 The first is the
none stablishment clause.322 Second is the free exercise and
enjoyment of religious profession and worship.323
The second aspect is atissue in this case.
Clearly, not all acts done by those who are priests, bishops,
ustadz, imams, or any other religious make such act immune
from any secular regulation.324 The religious also have a
secular existence. They exist within a society that is regulated
by law.
The Bishop of Bacolod caused the posting of the tarpaulin.
But not all acts of a bishop amounts to religious expression.
This notwithstanding petitioners’ claim that "the views and
position of the petitioners, the Bishop and the Diocese of
Bacolod, on the RH Bill is inextricably connected to its
Catholic dogma, faith, and moral teachings. . . ."325
The difficulty that often presents itself in these cases stems
from the reality that every act can be motivated by moral,
ethical, and religious considerations. In terms of their effect on
the corporeal world, these acts range from belief, to
expressions of these faiths, to religious ceremonies, and then
to acts of a secular character that may, from the point of view
of others who do not share the same faith or may not subscribe
to any religion, may not have any religious bearing.
Definitely, the characterizations ofthe religious of their acts
are not conclusive on this court. Certainly, our powers of
adjudication cannot be blinded by bare claims that acts are
religious in nature.
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Petitioners erroneously relied on the case of Ebralinag v. The
Division Superintendent of Schools of Cebu326 in claiming
that the court "emphatically" held that the adherents ofa
particular religion shall be the ones to determine whether a
particular matter shall be considered ecclesiastical in
nature.327 This court in Ebralinagexempted Jehovah’s
Witnesses from participating in the flag ceremony "out of
respect for their religious beliefs, [no matter how] "bizarre"
those beliefsmay seem to others."328 This court found a
compelling necessities of a secular command. It was an early
attempt at accommodation of religious beliefs.
In Estrada v. Escritor,329 this court adopted a policy of
benevolent neutrality:
With religion looked upon with benevolence and not hostility,
benevolent neutrality allows accommodation of religion under
certain circumstances. Accommodations are government
policies that take religion specifically intoaccount not to
promote the government’s favored form of religion, but to
allow individuals and groups to exercise their religion without
hindrance. Their purpose or effect therefore is to remove a
burden on, or facilitate the exercise of, a person’s or
institution’s religion. As Justice Brennan explained, the
"government [may] take religion into account . . . to exempt,
when possible, from generally applicable governmental
regulation individuals whose religious beliefs and practices
would otherwise thereby be infringed, or to create without
state involvement an atmosphere in which voluntary religious
exercise may flourish."330
This court also discussed the Lemon test in that case, such that
a regulation is constitutional when: (1) it has a secular
legislative purpose; (2) it neither advances nor inhibits
religion; and (3) it does not foster an excessive entanglement
with religion.331
As aptly argued by COMELEC, however, the tarpaulin, on its
face, "does not convey any religious doctrine of the Catholic
church."332 That the position of the Catholic church appears
to coincide with the message of the tarpaulin regarding the RH
Law does not, by itself, bring the expression within the ambit
of religious speech. On the contrary, the tarpaulin clearly
refers to candidates classified under "Team Patay" and "Team
Buhay" according to their respective votes on the RH Law.
The same may be said of petitioners’ reliance on papal
encyclicals to support their claim that the expression onthe
tarpaulin is an ecclesiastical matter. With all due respect to the
Catholic faithful, the church doctrines relied upon by
petitioners are not binding upon this court. The position of the
Catholic religion in the Philippines as regards the RH Law
does not suffice to qualify the posting by one of its members
of a tarpaulin as religious speech solely on such basis. The
enumeration of candidates on the face of the tarpaulin
precludes any doubtas to its nature as speech with political
consequences and not religious speech.
Furthermore, the definition of an "ecclesiastical affair" in
Austria v. National Labor Relations Commission333 cited by
 ADMINISTRATIVE LAW Loti Ganda Talino Notes – Villaroman, Carlota N. (2S)
petitioners finds no application in the present case. The
posting of the tarpaulin does not fall within the category of
matters that are beyond the jurisdiction of civil courts as
enumerated in the Austriacase such as "proceedings for
excommunication, ordinations of religious ministers,
administration of sacraments and other activities withattached
religious significance."334
A FINAL NOTE
We maintain sympathies for the COMELEC in attempting to
do what it thought was its duty in this case. However, it was
misdirected.
COMELEC’s general role includes a mandate to ensure equal
opportunities and reduce spending among candidates and their
registered political parties. It is not to regulate or limit the
speech of the electorate as it strives to participate inthe
electoral exercise.
The tarpaulin in question may be viewed as producing a
caricature of those who are running for public office.Their
message may be construed generalizations of very complex
individuals and party-list organizations.
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motivated by the interpretation of petitioners of their
ecclesiastical duty, but their parishioner’s actions will have
very real secular consequences. Certainly, provocative
messages do matter for the elections.
What is involved in this case is the most sacred of speech
forms: expression by the electorate that tends to rouse the
public to debate contemporary issues. This is not speechby
candidates or political parties to entice votes. It is a portion of
the electorate telling candidates the conditions for their
election. It is the substantive content of the right to suffrage.
This. is a form of speech hopeful of a quality of democracy
that we should all deserve. It is protected as a fundamental and
primordial right by our Constitution. The expression in the
medium chosen by petitioners deserves our protection.
WHEREFORE, the instant petition is GRANTED. The
temporary restraining order previously issued is hereby made
permanent. The act of the COMELEC in issuing the assailed
notice dated February 22, 2013 and letter dated February 27,
2013 is declared unconstitutional.
SO ORDERED.

They are classified into black and white: as belonging to

"Team Patay" or "Team Buhay."

But this caricature, though not agreeable to some, is still

protected speech.

That petitioners chose to categorize them as purveyors of

death or of life on the basis of a single issue — and a complex
piece of legislation at that — can easily be interpreted as
anattempt to stereo type the candidates and party-list
organizations. Not all may agree to the way their thoughts
were expressed, as in fact there are other Catholic dioceses
that chose not to follow the example of petitioners.

Some may have thought that there should be more room to

consider being more broad-minded and non-judgmental. Some
may have expected that the authors would give more space to
practice forgiveness and humility.

But, the Bill of Rights enumerated in our Constitution is an

enumeration of our fundamental liberties. It is not a detailed
code that prescribes good conduct. It provides space for all to
be guided by their conscience, not only in the act that they do
to others but also in judgment of the acts of others.

Freedom for the thought we can disagree with can be wielded

not only by those in the minority. This can often be expressed
by dominant institutions, even religious ones. That they made
their point dramatically and in a large way does not
necessarily mean that their statements are true, or that they
have basis, or that they have been expressed in good taste.

Embedded in the tarpaulin, however, are opinions expressed

by petitioners. It is a specie of expression protected by our
fundamental law. It is an expression designed to invite
attention, cause debate, and hopefully, persuade. It may be